The Supreme Court Has Not Had a Good Abortion Case in Years....

In the great abortion debate today, most eyes are on Philadelphia and the media-neglected horror show of the Gosnell trial. Special kudos should go out to Krysten Powers for bringing this media neglect/ignorance to light. Put simply, the events at the West Philadelphia Women’s Clinic run by Gosnell is literally a horror show complete with severed limbs kept in jars and an examination room that looks like something out of the “Saw” movie franchise. A good case could be made that a back alley abortion would likely be more sanitary and safer for women than the conditions under which Gosnell performed abortions. It is interesting to look at media coverage of this case compared to the late term abortion doctor who was threatened and then gunned down in his church a couple years back. Then, he was glorified for the fact that he was “only one among a handful of doctors nationally who performed later term abortions.” Apparently, there are more than just “a handful” of such practitioners.

Ironically, this increased media attention outside the immediate Philadelphia area thanks to the right wing press occurred around the same time that an internal debate seemed to break out in the pro-choice regarding the efficacy of infanticide. It would appear that the slippery slope that the pro-life camp worries about just got a little more slippery…until Planned Parenthood did some damage control and walked back their original comments.

And then to the chagrin of the lamestream media, North Dakota passed perhaps the strictest abortion law in the country that has the pro-choice community absolutely apoplectic. Admittedly, this law may not stand before a court, but you can’t fault the state for trying and it will be interesting to see how far North Dakota intends to take this in the court system.

The Supreme Court has not had an abortion case since 2007 when they ruled that a federal ban on the procedure known as partial birth abortion was constitutional. To read the left wing blogs, websites and editorials, one gets a sense of their hypocrisy on this issue. For example, they hold up Roe v. Wade as sacrosanct, but within that decision’s faulty trimester framework which established viability (the age at which the fetus can survive outside the womb) as the primary criteria, the Court in 1973 clearly and plainly announced that a state’s interest in fetal life increased as one proceeded through pregnancy. By definition, partial-birth abortions are performed most likely in the late second or the third trimester, that very area where Roe states that the state has a greater interest in that human life. Even by the definitions held near and dear by the pro-choice community established in Roe, the government (state or federal) can regulate and even ban partial birth abortions, unless the mother’s life is in danger or there exists a high risk to maternal health.

Ironically, by equally divisive 5-4 vote a few short years previous, the Court struck down a similar Nebraska ban on partial birth abortion. In the intervening years, Alito and Roberts joined the Court and, most importantly, O’Connor had left. The Rehnquist Court had plenty of opportunity to revisit Roe and over-rule it but failed to do so. That is because a somewhat “happy compromise” had been adopted by the Court where the constitutional test attributed to gauge abortion laws would be the “undue burden” test. If the regulation placed an undue burden on a woman’s “right” to obtain an abortion, then it would run afoul of the law. For example, parental notification laws are acceptable provided there is a judicial bypass while spousal notification laws are generally unacceptable.

Realizing that overturning Roe would be an almost impossible task, the pro-life movement changed tactics while still advocating that the decision be reversed and started to advocate for changes in state laws. And that is where we are today and where possible litigation before the Supreme Court will originate. Today, these regulations fall into four broad categories: directives that affect the would-be patient, clinic regulation, viability or “personhood” regulations/definitions, and funding issues.

Looking at these state laws in turn, we start with those directives that affect women seeking abortions. As stated before, provided there is a judicial bypass mechanism, most parental notification laws would likely survive scrutiny and not be considered an undue burden. Nor would waiting periods provided they are not excessive. For example, many states- red and blue- have waiting periods. Among the 26 states that have them, the average wait period is 24 hours which sounds reasonable. Only South Dakota and Utah have 72 hour waiting periods. Ten states require in-person counseling which requires two trips to an abortion provider while ten states also require the patient receive written information about abortions. All but a few states require the provider to give a description of the procedure while most also mandate that fetal development be part of the counseling. Twelve states require that the patient be told the fetus can feel pain while 5 require that the patient be informed that life begins at conception. Several states require that the patient be informed of future fertility risks, possible connections to breast cancer or mental health effects of abortion. Conversely, more than half the states, including many of these so-called strict states, require that the patient be informed of the risks of carrying the pregnancy to term.

Regarding these regulations, it may be interpreted that they are designed to discourage a woman from having an abortion. That is one way of looking at it. However, the better way of looking at it is they represent an enhancement of informed consent requirements and codify them in some way. Liberal groups decry the “long” waiting periods of 72 hours yet there are no reliable statistics to prove that a 72 hour waiting period discourages any woman from having an abortion. Further, they are legal in some states but enjoined against enforcement in others by the courts. Provided the information presented is accurate regarding the other factors, it would be a stretch of the imagination to consider them “undue burdens.” Where they may possibly get into trouble is the requirement that patients be told human life begins at conception. In fact, this is a philosophical question that has eluded many for eons. Technically and from a purely biological perspective, of course the fertilized egg is human life in its most rudimentary form (i.e., it will not develop into a tree or a frog). It should be noted that in most of these instances, no state outright bans abortion. Although the regulations may appear cumbersome to the patient, whether they can be classified as an undue burden is another story. Of course they are a stealth means by the state to encourage life over abortion, but whether they are unduly coercive is also another story. Statistics do indicate that the states with the most restrictive abortion laws have abortion rates well below the national average.

The second set of regulations involve those of the abortion clinics themselves. One of the biggest talking points of the pro-choice movement is that without legal abortions vis-a-vis Roe v. Wade, women would be forced to obtain abortions illegally under non-sterile, unsanitary conditions- the old wire hangar in the back alley argument. Yet, when a state passes a law that attempts to provide the most sanitary and sterile conditions for the performance of abortions, it is perceived as a hindrance to abortion. Unfortunately, complications can occur with an abortion just like any other surgical procedure. Still, the overall rate is 0.6 per 100,000 abortions which is about equivalent to the risk of complications from receiving an antibiotic injection. Only 0.3% of patients undergoing an abortion suffer complications requiring hospitalization. Naturally, the risk of complications increases the further along in the pregnancy. Hence, certain regulations like those proposed in Virginia mandating hallway width and such would appear to a court to have an anti-abortion animus rather than a public health goal in mind. In Mississippi, doctors at thir lone abortion clinic in Jackson are required to have admitting privileges to a nearby hospital. However, no hospital will grant admitting privileges. There was currently an injunction against enactment of this law pending the ability of the doctors to get those privileges, but the court was again asked to grant an injunction on constitutional grounds which they did. This case is still pending. It is difficult to imagine the Supreme Court breaking out the tape measures and calling for briefs from contractors as to the cost of these mandated changes in Virginia abortion clinics and it is likely the lower courts will fail to see the nexus between hallway width and health safety. As for the Mississippi case, the outcome is trickier since even though rare, there still exists the possibility of complications. Here, it would be a fine line between an undue burden and a commonsense public health requirement.

The third area concerns viability. States have passed laws defining a “person” for legal purposes as beginning at conception (the rare instance), or when the fetus can feel pain, when a heartbeat can be detected, or when the fetus can survive outside the womb. Increasingly, this has pushed the interest of the states earlier into the gestational period. Idaho prohibits most abortions after 20 weeks and although the law was upheld by the District Court, the Ninth Circuit issued an injunction and will hear an appeal. Arkansas passed a law over the governor’s veto banning most abortions after 12 weeks while the North Dakota law pushes the envelope at 6 weeks. Decisions in this area may well bring into play the role of state’s rights since these are political decisions decided after considered debate and and reviews of scientific research. For example, the notion of fetal pain was nowhere to be found in Roe in 1973 as the technology did not exist then. This is one of the main problems with the Roe decision’s criteria which was arbitrary. As technology advanced, the age of viability was pushed earlier and earlier into the gestational period. In 1973, premature deaths, for example, were certainly higher than they are now. Ultrasounds were in their formative stages. Hence, is it any wonder that today states are grappling with the political and legal refuse from Roe? Is the Supreme Court to sweep in yet again and play Solomon and announce a broad template for determining “personhood?” What the Left currently decries as a stealth method to ban abortions is nothing but the stupidity left in the wake of the trimester and viability framework inherent in Blackmun’s Roe decision.

The fourth and final area involves funding for abortion services, or as the Left likes to portray it, female reproductive services. Here, the only thing that can describe the Left is pure chutzpah! While they decry the fact that pro-life organizations are trying to foist a religiously based agenda on the entire public, they likewise turn around and demand that this same public fund abortion services. Several states have now blocked funding to Planned Parenthood which represents ground zero in the debate. While it may be true that Planned Parenthood may not use federal funds to provide abortions, by using federal money for non-abortion activity they then have additional funds from other sources to perform abortions. Hence, there is an indirect nexus between federal funding and abortion. Put another way, should all federal funding be blocked to Planned Parenthood, they would then have to budget the remaining dollars. Assuming they do serve the community with family planning in the form of female health screenings and contraception, they likely would have to decrease the amount dedicated to abortion services. In fact, there are a few cases working their way through the lower courts regarding the state blockage of Medicaid funds towards non-medically necessary abortions. Incidentally, somewhere between 85% and 90% of all abortions performed in the US are not medically necessary and are performed simply for “social convenience.” Last year, restrictive funding laws have been challenged in Nebraska, Arizona and Indiana.

In December 2012, the ACLU of Massachusetts filed a lawsuit against the federal government over their funding of the Catholic Conference of Bishops. The Department of HHS annually funds a program of the USCCB to help combat the human trafficking of women in the sex trade. Apparently, they do a very good job at outreach and intervention which is why they receive the funding. The ACLU, however, objects to their excellent work in this area (which, personally, I believe is a greater degradation of women rather than any view on abortion) because the Catholic Church stands opposed to abortion. The ACLU contends that the federal government is “endorsing” a religious viewpoint through their funding. In fact, they are endorsing a religious viewpoint, just not the one the ACLU contends- the dignity of women in general and freedom from sex trafficking. This case illustrates the hypocrisy of the Left unless they believe that participation in forced prostitution is somehow a means to the empowerment of women in general. I venture most sane people would reject that argument.

Some prognostication: In the area of regulations allegedly designed to place roadblocks in the way of women and their obtaining an abortion, it is likely the states will present a defense under some form of informed consent argument. Most likely, absent specific requirements in other surgical areas, the courts must then ask what makes the surgical abortion procedure worthy of such detailed informed consent requirements. From a personal standpoint, if you truly want to “empower” someone, you do that through information and the more information, the more empowered one is. But the information provided cannot be coercive and must be neutral. Provided it is- and this is for the lower trial courts to determine- it is hard to see how these laws cannot stand.

Regarding the regulation of clinics, the motive behind the regulations would likely be examined. For example, if the regulations are written to effectively target only abortion clinics, then they would likely fail. Secondly, the state would have to justify why a hallway of a certain width would enhance the safety of the clinic and the same goes for the other regulations. What, for example, makes it important that an abortion clinic have X amount of square footage versus a dental clinic? Secondly, requirements of hospital admitting privileges may not even survive under this analysis since a mere 0.6 of every 100,000 abortions result in complications leading to pregnancy. Of course, any surgical procedure may lead to complications. Having a tooth removed may later require hospitalization (I do not wish to equate abortion with a tooth extraction in the moral sense). But, if the risk of complication equals the almost non-existent risk of receiving a penicillin injection, the state would be hard-pressed to prove their point. Conversely, if 42 million abortions are performed annually, using the pro-choice’s own statistics, about 126,000 women are hospitalized yearly for complications.

In the viability/”personhood” area, we may actually see the Supreme Court eventually intervening if for no other reason there may exist a split among circuits as to whether these laws and determinations are approved by the appeals courts. The ramifications beyond abortion are likewise numerous. For example, assuming a state passes a law recognizing a fetus as a “person,” do the parents then have a right to declare that fetus as a dependent for tax purposes? Drinking while pregnant is known to cause complications during pregnancy or problems with fetal development. Should bars, to avoid possible legal liability, check the pregnancy status of patrons? Unfortunately, these somewhat ridiculous possible scenarios are brought to you courtesy of Justice Harry Blackmun.

Finally with the funding issues, these laws and challenges to them by either side illustrate the problems encountered when the government gets involved in areas they have no right legislating in in the first place. Planned Parenthood is a private organization that should receive all its funding from private sources no matter its mission. Likewise, the Catholic Conference of Bishops should also receive their funding from private sources and the Catholic Church no matter how noble its mission and successful its programs. Looking at abortion as an alleged “right,” the government does not directly fund enhancement of any other more constitutionally grounded right other than possibly the public defender’s office. We do not fund free speech or a free press. We allow it, even strive towards it, but we do not or should not fund it. With the Second Amendment, we do not fund purchases of firearms. Even when certain rights are violated, we shield the government from financial liability through the concept of sovereign immunity. Hence, one would be hard-pressed to see how forced funding of any entity that provides abortion or any other service is constitutionally required of any government. Clearly, that is a political decision whether to fund or not to fund.

The last case to be even tangentially considered by the Court involving abortion was not, in fact, an abortion case at all. That case was The Real Truth About Abortion vs. FEC which involved political advocacy communications in light of the Citizens United decision. This case came from the Fourth Circuit in Virginia and the petition was dismissed and the lower court’s support of the FEC’s decision upheld. The other case more closely related to abortion involved the Texas law that touched on First Amendment arguments which the 5th Circuit allowed to proceed after the District Court issued an injunction against enforcement. An appeal to the Supreme Court, specifically Justice Scalia, met with rejection to issue another injunction pending appeal. Thus, Texas became free to enforce the new law last year. Thus, it would appear that unless something dramatically happens, the Supreme Court is not prepared or willing to entertain another abortion case in the near future and the battle will remain rightfully at the state level where, quite frankly, it belonged all along.

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