Opinion

The States and the Courts Differ on Abortion Laws. When and Will It Come to a Head?

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Posted: May 08, 2019 12:01 AM
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The States and the Courts Differ on Abortion Laws. When and Will It Come to a Head?

Source: AP Photo/John Amis

On Tuesday morning, Republican Governor Brian Kemp of Georgia gave his long-awaited signature to the Living Infants Fairness and Equality (LIFE) Act, also known as the heartbeat bill. As has been the case in states where it’s passed, including Ohio, a legal challenge is expected.

The heartbeat bills seek to protect innocent unborn life, in this case after a fetal heartbeat is detected. Alabama is considering an even stricter law, which bans abortions outright and makes performing the procedure a Class C felony. In addition to protecting the unborn, these laws are also in response to the states which have considered or extremist bills in the further direction, with states such as New York allowing for abortions up until birth. 

It’s not merely blue states which are considering or have legalized abortion up until birth which is at a disconnect with red states. It’s the courts.

With the United States having some of the most relaxed abortion laws in the world, states have tried to incrementally chip away at Roe v. Wade and Doe v. Bolton, at least until recently. 

If one is hoping that the heartbeat bills and the Alabama abortion bill make their way to the U.S. Supreme Court, one must look to the high court and the lower courts to see what we’re working with here.

While many pro-life advocates celebrate the passage of the heartbeat bill, the Virginia Society for Human Life on Monday issued a press release on Falls Church Health Care Center v. Oliver. The case coming from the U.S. District Court of the Eastern District of Georgia struck down a law prohibiting advanced practice clinicians, such as nurse practitioners and physicians assistants, from performing first trimester abortions.

A statement from Olivia Gans Turner, president of the organization, notes that the decision “is directly contrary to controlling U.S. Supreme Court precedent” and says it would be a “near-certainty that the Supreme Court would overturn this unprincipled holding.” However, the group is fearful Virginia Attorney General Mark Herring will fail to appeal the decision, “prioritizing his personal advocacy of abortion on demand.”

Last month the Oklahoma Supreme Court nullified a state law which required providers to follow the 2000 FDA protocol rather than the updated protocol. While the FDA recently updated its protocol to allow women to use the medication abortion method up until ten weeks, the previous protocol, and what had been Oklahoma’s law, allowed for up until seven weeks. It is worth noting that the later in pregnancy a woman waits to undergo this method, the more risk there is for incomplete abortion. 

This was around the same time as the Kansas Supreme Court found the Kansas Unborn tgmChild Protection from Dismemberment Abortion Act unconstitutional, which would have banned the second-trimester abortion procedure known as dismemberment abortions. The 6-1 decision read eerily similar to Roe and the 1992 U.S. Supreme Court case of Planned Parenthood v. Casey. “Although not absolute, this right is fundamental,” the opinion in part read. If that is the case, why, then, are second-trimester abortions being permitted? The decision cannot be appealed to the U.S. Supreme Court. The remedy against such a ruling then is an amendment to the state’s constitution.

In late March, U.S. District Judge William Osteen found a North Carolina 20-week abortion ban to be unconstitutional. Before heartbeat bills were a trend, 20-week abortion bans were, which ban abortions halfway through a pregnancy, when unborn children can feel pain. Late-term abortions are mostly performed on healthy women with healthy fetuses, yet are also significantly dangerous, even deadly, for women, and banning them is supported by majorities of Americans, including those who identify as pro-choice. The United States is one of just seven nations which allows for elective abortions past 20-weeks. 

What can we hope for when it comes to cases before the U.S. Supreme Court? We don’t know for sure, yet, even with two Trump appointees on the bench, with Justice Brett Kavanaugh replacing Justice Anthony Kennedy, who was sympathetic to abortion rights. 

There always seems to be at least one conservative on the bench who disappoints on abortion rulings. Earlier this year it was Chief Justice John Roberts who joined the liberals on the Court to temporarily block a Louisiana abortion law from taking effect. The law sought to regulate abortion facilities and required abortion providers to have admitting privileges at a hospital. In a 2016 5-3 decision, Whole Womens Health v. Hellerstedt, the Court struck down a similar Texas law. 

North Dakota passed a heartbeat law way back in 2013. Noteworthy is how the Supreme Court refused to hear the case in 2016, which meant it was permanently struck down. 

How should we approach future rulings, when and if they come? One pessimistic view is that the Supreme Court will take up heartbeat bills, and not only to overturn them but strengthen abortion laws, as Casey did with the standard that women could not face an “undue burden” when seeking out an abortion. Should states wait until Roe is overturned with another abortion law before trying for heartbeat laws?

There’s another, more optimistic way of looking at the situation. Laws like those in Texas and Louisiana requiring abortion providers to have admitting privileges don’t outright ban abortion, but rather seek to regulate the procedure. Heartbeat bills and the bill being considered in Alabama bans the procedure. Perhaps the U.S. Supreme Court needs such a direct case to be able to rule on abortion and overturn Casey, Roe, and Doe. 

Times have changed. Even with states passing extremist pro-abortion legislation, Americans might be realizing that we no longer want to have some of the most pro-abortion laws in the world. Hopefully, our courts will have caught up.