The Real Abortion Battle is at the State Level

When you’re convinced that you’re losing the battle, what do you do?  Find a new battlefield.

Several years back, the Republican party made a quiet yet very significant shift in its political strategy. The new strategy has two interconnected prongs:

1. Thwart, blockade and obstruct nearly everything at the federal level so that nothing happens.

2. Move the real work to the state level.

The GOP has invested enormous amounts of time, energy and money into winning control over state legislatures and governorships across the country. And they have been remarkably successful in doing so. This, in turn, has allowed them to do two things:  large-scale gerrymandering of districts to guarantee them control at the state level and improve their standing at the federal level; and advance their key platform objectives through legislation at the state level.  Again, they have been remarkably successful.

Top of the list is abortion restrictions. 2013 set new records for restrictions on abortion pushed through at the state level. Many of these laws are extremely aggressive and clearly unconstitutional, but may take years to work their way through the courts. And in the federal appeals court and Supreme Court, it creates a complex web of cases and precedents that need to be resolved.

At the Supreme Court level, there are three cases that establish precedent for resolving these cases.  The first is, of course, Roe vs. Wade, in which it was determined that the government may not restrict a woman’s right to have an abortion before the third trimester.  The second is Webster vs. Reproductive Health Services, which established viability of the fetus as the point at which abortion may be restricted because it introduced a state’s interest in protecting an arguably independent life. In Webster, the Supreme Court also ruled that the government can restrict the use of public funds for pay for abortion procedures.

The third is Planned Parenthood vs. Casey, which addressed state laws attempting to restrict access to and availability of abortions. The Supreme Court ruled that state laws may not place an “undue burden” on a woman’s ability to have an abortion.

What’s happening now is that state legislatures are getting very creative in their attempts to restrict abortion without running afoul of the “undue burden” ruling in Casey, often with laws that sound very plausible on the surface. In several states, laws have been passed that require doctors providing abortion services to have admitting privileges in a nearby hospital; that is costly and an administrative burden, and many hospitals – including the large number run by the Catholic church — are under extreme pressure not to grant those privileges. It’s also unnecessary, since no hospital would refuse to admit a woman who was transferred from an abortion clinic because of complications. In other states, abortion may only be done in full surgical units, which most local abortion clinics could never afford. And most of us have heard about the state that enacted the requirement for an extremely invasive transvaginal ultrasound as part of the pre-abortion consultation, just one example of attempts to layer bureaucracy and hurdles on the process of getting an abortion.

In a far more brash attempt to outlaw abortion, North Dakota passed the strictest law in the nation, which disallowed abortions after a fetal heartbeat could be detected: at about 6 weeks into the pregnancy. Since abortions generally can’t be performed before 5 weeks, and many women aren’t aware that they are pregnant until 6 weeks or later, this essentially made all abortion illegal in the state.

This has already had its day in court, and today a district court judge ruled the law unconstitutional.  More analysis can be found here at the excellent SCOTUSblog site.  What is notable, in fact remarkable, about this case is that the State of North Dakota argued that the point of viability is at conception because of in-vitro fertilization techniques in which a newly-fertilized egg can live outside the uterus for 1-2 days before being implanted. This is a completely ridiculous argument, and the judge was having none of it. In fact, he had a fairly easy time of it: there is clear Supreme Court precedent, repeatedly reaffirmed, of the viability test and how it is defined.

Which raises the question: why would North Dakota put forth an argument so ridiculous?  I have a good guess, based upon the words of the state’s expert medical witness:

It behooves the legal profession to acknowledge the medical developments and advancements, and in turn appropriately act upon the current medical standards to change existing law, which is based on either old, outdated medical science, or previously unknown medical science and fact, or both. Viability now determined to occur at conception (see Paragraphs 19-27 above) provides a solid basis that will stand the test of time because it is not based on the ever shifting and changing neonatal definition, which currently plagues the legal and medical profession. For example, some like Dr. Iverson now conclude viability only can occur at 22-24 weeks last menstrual period (LMP) when only a few years ago, these same parties concluded viability could only occur at 28-30 weeks last menstrual period (LMP). This standard of viability occurring at any time other than conception, being not only medically unsound, plagues the medical profession because of the uncertainty and vagueness when rendering a medical judgment as to whether viability is present for ongoing clinical decision making. Viability at conception is based on medical science and fact and is in alignment with natural law. It is clearly and succinctly defined.

I think they knew that the district court judge would have to strike down the law based on the controlling case law, but their intent here was to provide the right-leaning members of the Supreme Court a test case in which to revisit viability as the critical factor for restricting abortions. They don’t really want to change the definition of viability to “the time of conception;” they want the whole notion of viability as the trigger point to be cast aside.

The state’s witness does have a point: the time of viability has shifted earlier because of medical progress, and it may continue to shift. So is that really a sound basis for such a major point of law?  In Roe vs. Wade, the court said that abortion couldn’t be restricted in the third trimester. In Webster, the Court said that was the wrong framework and substituted viability as the point in time beyond which abortion could be restricted. So there is already precedent for shifting the way these decisions are made. What would the court do with a case that directly attacked viability as the test?

Back in January, the Court refused to hear (without stating their reasons) a case in which the appeals court had thrown out an Arizona law banning abortions after 20 weeks.  But the Supreme Court almost always just looks at the issues posed to it by the party appealing the case, and in that case it was about fetal pain and whether viability was the only critical factor. Who knows what the Court would do if they had a case that simply presented the issue about whether viability could be used at all as a factor (let alone the critical one).

We’ll see what happens. Again, this is just one of many cases of state laws restricting abortion that are making their way through the courts, so expect to hear much more in the coming months and years.


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