NEW ORLEANS — The dozens of pro-life laws that states have enacted in recent years have created a wave of related litigation that may require the U.S. Supreme Court to decide whether the new regulations violate Roe v. Wade.
Since late 2012, more than a dozen lawsuits have been filed by pro-abortion groups such as Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union (ACLU), who contend that the new state laws place undue burdens on women seeking abortions.
The provisions that are most often challenged relate to stricter regulations on physicians who perform abortions and on how chemical abortions are performed. These regulations, pro-abortion forces say, violate Roe v. Wade’s constitutional guarantee of abortion by creating undue burdens.
A dozen states enacted late-term bans of abortion after 20 weeks, but only Arizona and Idaho have had their bans struck down.
Pro-abortion forces challenge the science pro-life advocates cite in arguing that unborn children feel pain in the womb after 20 weeks. The pro-abortion organizations also argue the fetal-pain standard violates Roe v. Wade’s standard that an unborn child can be aborted before he or she is viable outside the womb.
"These cases could present the [Supreme Court] with the opportunity to affirmatively say, ‘We reject the viability standard,’" said Denise Burke, vice president of legal affairs for Americans United for Life.
Burke has written AUL’s model legislation that 13 states have adopted to ban abortions after 20 weeks on the basis that the procedure causes pain to the unborn and harms women who undergo late-term abortions. Burke told the Register that the pro-abortion forces’ arguments that the laws’ abortion restrictions create unreasonable burdens for women have little merit.
"Other states have hospital-admitting privileges in place, and there is no demonstrable record that having those restrictions in place presents a burden," Burke said. "What it has done is put a burden on abortion providers, and that is not reason enough to strike down the law, so I don’t think that argument is going to hold much sway."
The Texas Law
On Jan. 7, in perhaps the most high-profile case of the new legal challenges, the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments over a 2013 Texas law that requires doctors who perform abortions to have hospital-admitting privileges. The law also compels abortion providers in Texas to follow U.S. Food and Drug Administration protocols in administering abortion-inducing drugs.
The appeals court is asked to decide whether a federal district court judge erred in declaring those two parts of the Texas law — which also banned abortions after 20 weeks — to be unconstitutional. Courts have blocked similar admitting-privilege requirements in Alabama, Mississippi, North Dakota and Wisconsin.
With the Texas law, the 5th Circuit stayed the lower judge’s ruling last October, which prompted Planned Parenthood and the Center for Reproductive Rights to ask the U.S. Supreme Court to overturn the appeals court’s stay. The high court rejected that request in a 5-4 decision. Justice Stephen Breyer wrote in the majority opinion that he believes four justices will ultimately hear the case no matter how the 5th Circuit decides.
If the 5th Circuit hearing on Jan. 7 is any indication, at least two members of the three-judge panel who heard arguments are skeptical of the pro-abortion parties’ contention that the Texas law presents an undue burden for women. The plaintiffs said the admitting-privileges requirement would force at least one-third of the state’s abortion providers to close. They said women living in the Rio Grande Valley already have to drive 150 miles to the nearest facility in Corpus Christi.
The Associated Press reported that 5th Circuit Judge Edith Jones questioned whether a 300-mile round trip was really an undue burden, commenting: "Do you know how long that takes in Texas at 75 miles an hour? This is a peculiarly flat and not congested highway."
Burke, a Texas native, said her home state is on solid legal ground because the law is based on solid evidence that abortion is harmful to women. She noted that 19 Texas abortion providers were previously cited for violating the state’s health and safety standards.
"The state had a significant record to base those requirements on," said Burke, who also rebutted arguments that requiring hospital-admitting privileges will shutter abortion providers. She noted that an abortion business in San Antonio reopened after getting admission privileges.
"I don’t put much stock in that argument," Burke said.
Other Key Cases
In Arizona, the 9th Circuit Court of Appeals, in a decision issued last May, struck down a state law prohibiting abortions after 20 weeks. On Jan. 13, the U.S. Supreme Court declined to hear Arizona’s challenge to the 9th Circuit’s ruling that declared the state ban to be unconstitutional.
The Supreme Court did not explain its decision. The high court’s refusal to hear the case means the Arizona law is struck down permanently.
In other notable cases, the 6th Circuit Court of Appeals has declared that Ohio’s regulation of chemical abortions is not an undue burden. In early December, the North Dakota Supreme Court heard arguments on whether a 2011 state law that banned a drug commonly used in chemical abortions violates the state Constitution. In Georgia, a pending lawsuit has been filed by the ACLU that challenges a state law banning abortions after 20 weeks. In December 2012, a Georgia state judge issued a temporary injunction that suspended the law.
Meanwhile, in Kansas, the ACLU filed a lawsuit against the state’s move to prohibit insurance companies from covering abortions in health plans sold on the health-care exchange created by the Affordable Care Act. The Kansas lawsuit was the first in the nation that challenged a state law intended to prohibit or limit abortion coverage on the exchanges. At least 22 other states have passed similar laws since 2010. The ACLU dropped the lawsuit in January 2013, after it failed to provide evidence to support its position that the Kansas law made it more difficult to get abortions.
Since the 2010 midterm elections, when Republicans regained control of the U.S. House of Representatives and gained several seats in state legislatures, pro-life legislation has proliferated across the country. Since 2010, there have been more than 200 such measures enacted in 30 states, according to a report by the Guttmacher Institute, a research group that supports legalized abortion.
The Guttmacher report also said that 22 states passed 70 laws restricting abortion by banning the procedure after five months, prohibiting abortion coverage on the health-care exchanges, regulating chemical abortions and requiring hospital-admitting privileges.
"I think this is the result of a confluence of a lot of factors," Burke said. "You have legislators who are more conservative, pro-life and an American public that is more skeptical of Roe v. Wade than it has been in decades. People are also seeing the evidence that abortion is harmful to women."
Brian Fraga writes from
Fall River, Massachusetts.
A longer version of this story
appears at NCRegister.com.