State legislatures trying to curtail abortions have suffered a 0-for-8 losing streak after court challenges to their new laws this year.
The laws, all but one signed by Republican governors, drew on ideas from a playbook created by an anti-abortion group. Democrats plan to use the attempted curbs to boost 2014 congressional fundraising and increase voter support, calling the laws part of a “War on Women.”
Four states’ statutes attacked the core of the U.S. Supreme Court’s rulings that a woman has a right to the procedure before a fetus is viable. Efforts to bar abortions after six, 12 and 20 weeks of pregnancy were halted in North Dakota, Arkansas and Idaho. An appeals court struck down Arizona’s 20-week ban. Laws imposing restrictions on doctors were blocked in North Dakota and two other states.
Trying to ban abortions before a fetus can live outside the mother’s womb “flies in the face” of U.S. Supreme Court rulings, said Paul B. Linton, a lawyer with the Chicago-based Thomas More Society whose group, an opponent of abortion, isn’t involved in defending early-pregnancy curbs.
Efforts to limit early-pregnancy abortions are unlikely to succeed, he said.
“I cannot see the Supreme Court upholding any of these laws with respect to the pre-viability applications,” Linton said in an interview, adding: “I can’t see those laws being upheld by lower federal courts.”
A judge in Bismarck, North Dakota, supported that view on July 22 in temporarily striking down a state law barring abortions at the sixth week of pregnancy, when a fetal heartbeat can typically be detected, except in cases of medical emergency.
“The state has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded all women,” U.S. District Judge Daniel L. Hovland wrote.
It has been 40 years since the Supreme Court in Roe v. Wade established a woman’s constitutional right to terminate an early pregnancy. Thirty states limited or prohibited abortions at the time. Colorado became the first to legalize it in 1967, after about 80 years of legislation against the procedure in the U.S., according to the pro-choice National Abortion Federation.
The high court reiterated its stance in “Roe” in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey. The decisions didn’t end legislative attempts to curb the procedure.
Leading the anti-abortion campaign in the states are the Washington-based groups Americans United for Life and National Right to Life Committee. The latter organization started lobbying before “Roe,” said Mary Spaulding Balch, its state-legislation director.
“Not a single year has gone by where we didn’t pass some piece of substantive legislation,” she said. “Our state affiliates have been in the trenches from the beginning.”
Americans United for Life publishes an annual review of laws in states titled “Defending Life,” a guide for lawmakers that contains model legislation.
“We believe that in the end, the abortion issue ought to be left to the states, that it was a serious judicial error for the United States Supreme Court to put itself in the position of being the abortion control board for the country,” said Ovide Lamontagne, the organization’s general counsel and a two-time Republican candidate for governor of New Hampshire. “We are essentially providing a resource for legislators across the country.”
Model bills in “Defending Life” and proposals by state affiliates of the National Right to Life Committee have been the impetus for some of the bills.
“Some people call it the playbook,” Jordan Goldberg, state advocacy counsel for the New York-based Center for Reproductive Rights, said of “Defending Life.”
“If you look, you will see a lot of the legislation that’s pending,” based on the models, Goldberg said in a phone interview. “It’s not as if the people in North Dakota woke up one day and said, ‘We have a real problem with the admitting privileges.’”
Her organization, the American Civil Liberties Union and Planned Parenthood, have led the legal opposition to laws targeting abortion.
Laws resembling Americans United for Life’s proposal to require doctors performing abortions to have admitting privileges at hospitals within 30 miles of their facilities passed in Mississippi and North Dakota.
Those laws were temporarily blocked by judges who found they likely burdened a woman’s right in states where doctors would be unable to obtain the privileges and sole clinics would be forced to close.
Similar laws now blocked would have shuttered three of five clinics in Alabama and in Wisconsin would have closed two of four and curtailed services at a third.
Proponents of North Dakota’s law argued it was needed to guarantee emergency care for abortion patients. It would have closed the Red River Women’s Clinic in Fargo.
State Judge Wickham Corwin said abortions performed there are “extremely safe and effective” pre-viability procedures, making the statute unnecessary.
In his July 31 decision, the judge also said the law posed an undue burden on women and that it ran afoul of the Supreme Court’s “Casey” decision.
Of the three hospitals within the specified 30-mile radius of the Red River clinic, Corwin said, one is affiliated with the Catholic Church and can’t be involved with abortions; the second -- a U.S. veterans’ hospital -- is barred from doing them by federal law; and the third has an annual minimum patient-admission requirement for a doctor’s affiliation.
“The legislature has shown open disdain for the rights clearly protected by the federal Constitution,” Corwin wrote.
Two hundred miles to the west in Bismarck on July 22, Hovland, the federal judge, was similarly critical in calling the fetal-heartbeat law a “blatant violation” of women’s rights.
Upon signing that measure into law in March, Republican Governor Jack Dalrymple acknowledged its uncertain future by saying its chance of surviving a court challenge was “in question.” He called it “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”
“The courts are incredibly important stopgaps, but nobody should be sanguine to think the courts are the solution to this,” Louise Melling, the ACLU’s deputy legal director, said in a telephone interview, adding that resistance is needed in the state legislatures.
“It’s important that people realize the impact of these restrictions is real,” Melling said. The New York-based group earlier this year launched a web page, dedicated to the proposition that the abortion rights issue is a women’s issue.
An adjacent page states that more than 300 abortion-restrictive laws have been introduced by state legislators this year.
Steven R. Morrison, a constitutional-law professor at the University of North Dakota in Grand Forks, said some lawmakers don’t understand the constitutional implications of their work.
“They truly believe abortion is murder,” Morrison said. “Why wouldn’t you pass a law that prohibits it? But we don’t live in a theocracy, we live in a democracy, and they’re ignoring the case law as it stands.”
Even a futile attempt to curb abortion has moral, political and legal value, said Donald P. Judges, a University of Arkansas law professor.
“For some it’s to make a point to their constituents or perceived constituents,” said Judges, the author of “Hard Choices Lost Voices: How the Abortion Conflict Had Divided America, Distorted Constitutional Rights, and Damaged the Courts.”
In his state, a measure curbing abortions at the 12th week of pregnancy was passed this year by the legislature over Governor Mike Beebe’s veto. Then it was blocked in court by U.S. District Judge Susan Webber Wright.
Drawing conclusions about trends should await final rulings on the merits of cases challenging state restrictions and subsequent appeals, Lamontagne, of Americans United for Life, said in an e-mail. “Trial courts apply the law as they understand it to be, and they are not always correct,” he said.
Peter Rofes, a Marquette University law professor in Milwaukee, said there’s a positive side to investing “the time, the effort, the money to engage the challenge” of proposing laws almost certain to prompt lawsuits they may not survive.
“It’s a victory for those who seek to keep it in the nation’s consciousness,” he said.
Rofes predicted the federal cases will rise at least to the regional appeals courts of appeal. Wisconsin Attorney General J.B. Van Hollen has filed papers signaling his intention to appeal an Aug. 2 ruling by a U.S. judge temporarily blocking the state’s hospital affiliate law.
Judges, the Arkansas law professor, agreed.
“I don’t think the current court is inclined to revisit Roe,” he said. “Until there’s a one-justice switch, I think it’s going to rest in the lower courts.”
Chief Justice John Roberts and associate justices Antonin Scalia, Clarence Thomas and Samuel Alito are perceived as the most likely to vote to revisit the issue and perhaps alter the status quo, Rofes said.
Justices Anthony Kennedy, Steven Breyer, Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan are widely viewed as unwilling to fundamentally alter the law, he said.
National Right to Life is pushing for a different kind of legislation, barring abortion at the 20th week of a pregnancy on the ground that a fetus at that point can feel pain.
Such measures have been passed in the U.S. House of Representatives and 10 states, most recently Texas.
“Pain is a subjective experience, no matter who is experiencing it,” Cassing Hammond, a professor at Northwestern University in Chicago and a doctor of obstetrics and gynecology, said in a phone interview. Neural pathways that transmit that sensation and cerebral development needed to process it as pain typically don’t fully develop in a fetus until at least the 23rd week of a pregnancy, he said, and possibly not until the 29th.
“We simply do not have evidence that those pathways are in place” at 20 weeks, he said, even if neuroscience has advanced since Roe. “These bans do not make good scientific sense.”
Hammond served as chairman of the National Abortion Federation’s board from 2010 to 2012. He said his views are “not about politics. It’s about providing safe care to patients.”
Linton of the Thomas More Society said of the pre-viability fetal-pain laws, “I would like to see these bills upheld. I just don’t think they will be.”
An Arizona law criminalizing abortions performed at or after the 20th week of pregnancy was struck down May 21 by a San Francisco-based federal appeals court. Prohibiting the procedure before fetal viability is unconstitutional, the court said.
State lawmakers based the statute on “the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age,” according to the appeals court ruling.
The state has until Sept. 28 to petition the U.S. Supreme Court for review. Americans United for Life was among the groups filing briefs in support of the law. Arguing against it were attorneys from the Center and the ACLU.
Balch of National Right to Life said her organization hopes the Supreme Court finds a compelling state interest in protecting the life of a child that can feel pain, based on science that wasn’t available in 1973.
“It hasn’t been before the court before, and we would welcome that challenge,” she said.
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