LITTLE ROCK, Ark. — A Supreme Court showdown over laws banning abortions that inflict pain on the unborn became more likely with the passage of a pair of new laws in Arkansas and the overturning of another in an Idaho lower court.
The Arkansas laws provide the state with the broadest abortion restrictions in the nation.
In late February, state legislators overrode Democratic Gov. Mike Beebe’s veto of the Pain-Capable Unborn Child Protection Act, which bans abortions after 20 weeks on the grounds that they inflict pain on their unborn victims.
And one week later, they overrode Beebe’s veto of the Arkansas Human Heartbeat Protection Act, which bans nearly all abortions after 12 weeks of pregnancy. The "heartbeat bill" is named after its supporters’ argument that unborn babies deserve legal protection once a heartbeat can be identified on an abdominal ultrasound.
In a March 7 statement, Father Frank Pavone, national director of Priests for Life, said the Arkansas Legislature has "done the right thing" in passing the heartbeat-protection bill.
"Governors aren’t governing their people if they aren’t protecting them," he said. "One of the most striking and effective statements over the years by the pro-life movement has been ‘Abortion stops a beating heart.’ It’s still true, and it’s about time the law starts catching up with that fact."
But the bill immediately sparked promises of a court challenge from national pro-abortion groups such as the American Civil Liberties Union and the Center for Reproductive Rights. And some pro-life leaders are concerned that the Human Heartbeat Protection Act is a legal overreach under current federal law, and therefore might backfire against the pro-life cause.
Michael Gonidakis, president of Ohio Right to Life, said a law’s end goal should be surviving in court. He told The Associated Press that he thinks the Arkansas bill will be struck down because it contradicts the current Supreme Court view that abortion is a constitutional right.
"It’s easy to say, ‘Let’s save all the babies,’" he said. "But you could pass 100 bills a day, and they’ll never go into effect and save one baby’s life."
Many pro-life advocates think fetal-pain state legislation like Idaho’s law rests on firmer legal ground. Aside from Arkansas, eight other states have passed legislation similar to Idaho’s Pain-Capable Unborn Child Protection Act, and three more have such bills in the works. North Dakota Gov. Jack Dalrymple approved a bill March 26 that will ban, starting in August, abortions as early as six weeks into pregnancy. Sex-selection abortion is also banned, as is abortion based on genetic abnormalities. North Dakota voters will vote in 2014 on the nation’s first amendment recognizing the right to life at every stage of human development; lawmakers approved it March 22.
All of these bills set the cut-off point for legal abortions at 20 weeks, because that, says Mary Spaulding Balch, director of state legislation for the National Right to Life Committee, is the age where "mounting medical evidence says unborn children are capable of feeling pain."
Idaho’s law is the first of the 20-week laws to be challenged, and Balch is happy that this case is already before the courts.
That is because the NRLC, which helped draft many of these bills, believes a standard tied to the unborn child’s ability to feel pain is likelier to break new ground in the U.S. Supreme Court than one tied to 12 weeks, an age at which there is less clear evidence that an unborn child can feel pain.
"We want to put our best case before the Supreme Court, something that is more likely to open doors in the future," she told the Register. The Arkansas law is more likely to be rejected, she predicted, and "to close doors."
In the Idaho court decision overturning that state’s fetal-pain legislation, Judge B. Lynn Winmill simply applied the status quo set in 1973 by the Roe v. Wade Supreme Court decision, which rested a woman’s right to an abortion on her right to privacy and legalized abortion up until the time of "viability" outside the womb for unborn children.
But Balch hopes the Supreme Court will consider the medical evidence that Winmill dismissed — and the Supreme Court in 1973 did not know about: Most unborn babies can feel pain by 20 weeks after conception.
"A whole field of fetal medicine and surgery has opened up since they made that decision. We know now that unborn children jerk away from painful stimuli, their stress hormones increase, and they require anesthesia before fetal surgery," Balch said. Evidence demonstrating this capacity to experience pain is assembled at the Doctors on Fetal Pain website (DoctorsonFetalPain.com).
Quite apart from arguing the case before the Supreme Court, the pro-life movement expects the issue to resonate with the public, especially when seeing ultrasound images of unborn children recoiling from instruments.
Nonetheless, pro-abortion organizations applauded the Winmill decision. "This is a big victory," said Janet Chung of Legal Voice, a Seattle-based women’s-rights advocacy group that supported the Idaho plaintiffs. "The court unequivocally stated that criminally prosecuting women seeking abortion care constitutes an undue burden and recognized the many obstacles women already face, particularly low-income women living in rural areas."
The case to overthrow Idaho’s new fetal-pain law was initially brought by Jennie Linn McCormack, after she was charged under several Idaho laws for aborting her latest, later-term pregnancy with mail-order chemicals in 2010. According to Chung, Winmill’s decision in McCormack’s favor was rooted in Supreme Court decisions on women’s abortion rights.
"There is a strong precedent in Supreme Court rulings for protecting a woman’s right to privacy," said Chung. "There is no precedent for protecting the fetus. The Supreme Court has not recognized any fetal rights."
Chung argued that other recent laws restricting abortions have so far escaped or survived legal challenge because they have not pitted fetal rights against women’s rights.
Instead, they have focused on "informing the woman’s choice" (by requiring, for example, the abortion facility to show her an ultrasound image of her pregnancy) or on protecting her health (by limiting abortion providers to physicians only).
These kinds of restrictions, said Winmill, did not place an "undue burden" on the liberty or privacy of the woman, but cutting off abortions after 20 weeks would.
Chung suggested that if the Supreme Court justices do take up the Idaho case, or another one generated by a state fetal-pain law, the pro-abortion side should win there too, if they follow their previous decisions. "I don’t see how they can ‘logic’ their way around the existing precedent" from 1973, which provides for access to abortion, she said.
However, Paul Linton of the Thomas More Society, a pro-life legal advocacy organization based in Chicago, said the Supreme Court is not bound by its own previous decisions and added that it’s clear some Supreme Court justices would overturn Roe v. Wade and the follow-up Planned Parenthood v. Casey decision if given the chance.
But Linton does not believe either the Idaho or Arkansas laws, or one now in the courts in Arizona, will even reach the Supreme Court. Because Justice Anthony Kennedy is a swing vote on life issues whose decision is difficult to predict, the four pro-life justices — Chief Justice John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas — would have no assurance of being able to revisit Roe substantively. For their part, the four solidly pro-abortion-rights justices — Stephen Breyer, Ruth Ann Ginsburg, Elena Kagan and Sonia Sotomayor — would agree with the lower court’s judgment against the fetal-pain law and would see no reason to revisit its decision. As a result, the top court could simply pass on hearing any appeal of a state fetal-pain law.
Said Linton, "From the pro-life perspective, we may have to wait five years [for a pro-life president to appoint new justices] before challenging Roe v. Wade."
Why is the pro-life movement putting so much emphasis on the 20-week pain cut-off, when 90% of abortions happen before then?
"Because it opens doors," NRLC’s Balch said. "Plus, we’d be saving 18,000 lives a year."
Bringing a fetal-pain law to the Supreme Court, according to Balch, would mean the court for the first time would be considering the question of "whether the unborn child has certain rights" to set against the rights of pregnant women.
Said Balch, "This law recognizes the states have a compelling interest to protect these pain-capable unborn children. And it is supported by a large body of scientific evidence."
Steve Weatherbe writes from Victoria, British Columbia.
Catholic News Agency contributed to this report.