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Once Again Abortion Advocates Seek to Impose Agenda through the Judiciary
Ana Brennan, J.D. o6 September 2018
Over the past few years, the pro-life movement has made significant gains in the state legislative arena. More pro-life legislation was passed between 2011 and 2015 “than any other five-year period since Roe.”i We know pro-life legislation saves lives, and further reflects the fact the American people do not support abortion on demand for the duration of a pregnancy. The number of abortions in the United States broke the one million mark in 1978, peaking at over 1.4 million in 1990.ii After twenty years in 1998, the number of abortions dropped below one million, down to just over 800,000.iii Since then, the number of abortions has decreased every year, with roughly 652,000 abortions reported in 2014.iv There are numerous variables involved that explain the decrease in abortions, but there is no doubt protective, pro-life legislation is a contributing factor.
Regardless of one's position on abortion, most people would consider a decrease in the number of abortions a good thing; that is, unless you are Planned Parenthood. Even though most of the pro-life laws on the books have already been litigated and upheld, it was very unlikely that abortion advocates would sit by while these laws eroded their ideological hold on society and threaten their financial interests.
In June of this year, Planned Parenthood unveiled their new line of legal attack. In Texas, Virginia, and Indiana Planned Parenthood filed suit in the respective courts challenging almost every pro-life law in each state. They filed in three different circuits with the hope there will be a split in the circuit courts’ decisions, thereby requiring the Supreme Court to reconcile the differences. At first, this would seem like a losing strategy considering these laws have been on the books for years. But in the 2016 decision of Whole Woman's Health v. Hellerstedt,v which struck down Texas’ abortion clinic regulations, the Supreme Court once again added legal ambiguity to the ever amorphous jurisprudence surrounding abortion.
For the entirety of abortion jurisprudence, the Supreme Court has applied various legal standards, most of which have no connection to the Constitution, to determine if and when abortion is permissible. Since the Supreme Court has declared abortion a fundamental right, the Court applied strict scrutiny when reviewing the constitutionality of abortion cases. Strict scrutiny requires the state to show that a law is narrowly tailored and furthers a compelling state interest; but in Planned Parenthood v. Casey vi the United States Supreme Court replaced the standard of review for abortion cases with the undue burden test, and further “clarified” the undue burden test in Hellerstedt.
We begin with the standard, as described in Casey. We recognize that the "State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." Roe v. Wade, 410 U. S. 113, 150 (1973). But, we added, "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends." Casey, 505 U. S., at 877 (plurality opinion). Moreover, "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Id. at 878.vii
It is this lack of a consistent, constitutionally applied standard that Planned Parenthood is trying to take advantage of. It is their contention that any pro-life law creates an undue burden on a woman’s “right” to abortion. If the Supreme Court were to interpret the undue burden standard in such a broad fashion, abortion would be just as, if not more, legally permissive as it was under Roe. By applying what Planned Parenthood considers a new interpretation of the undue burden standard, their intention is to overturn state laws that require only a licensed physician can perform abortions, licensing of abortion clinics, parental involvement, informed consent, waiting periods, an ultrasound prior to an abortion being performed, and laws that prohibit “telemedicine” to prescribe abortion drugs and second-trimester abortions,viii to list a few.
Once again pro-abortion advocates are using their tried and true modus operandi of running to the courts to do their bidding. They know they cannot impose their extremist pro-abortion agenda through legislative means. Their will must be imposed by the judiciary. It remains to be seen whether or not this strategy will serve them the way it has in the past since Justice Kennedy retired after Planned Parenthood filed these lawsuits. The almost certain confirmation of Judge Kavanaugh to the Supreme Court creates uncertainty for those on both sides of the abortion debate. Whether or not Judge Kavanaugh will uphold the current interpretation of what constitutes an undue burden or create yet another standard of review, remains to be seen. One thing is sure, a new judge on the Court has raised the stakes for Planned Parenthood.
It will be interesting to see how these lawsuits unfold in the courts. No matter how many pro-life laws are passed and upheld, the pro-abortion movement will always try to undermine them. Regardless of the methods used by abortion advocates, it is important to note just how extreme their position is in relation to the average American; Americans who support the pro-life legislation currently on the books, and then some.
[i] News in Context, Guttmacher Institute, January 2016. Retrieved September 6, 2018. https://www.guttmacher.org/article/2016/01/last-five-years-account-more-one-quarter-all-abortion-restrictions-enacted-roe
[ii]Abortion Surveillance – United States, 1990, Morbidity and Mortality Weekly Report (MMWR), Centers for Disease Control and Prevention. Retrieved September 6, 2018. https://www.cdc.gov/mmwr/preview/mmwrhtml/00031585.htm
[iii] Abortion Surveillance – United States, 1998, Morbidity and Mortality Weekly Report (MMWR), Centers for Disease Control and Prevention. Retrieved September 6, 2018. https://www.cdc.gov/mmwr/preview/mmwrhtml/ss5103a1.htm
[iv] Abortion Surveillance – United States, 2014, Morbidity and Mortality Weekly Report (MMWR), Centers for Disease Control and Prevention. Retrieved September 6, 2018. https://www.cdc.gov/mmwr/volumes/66/ss/ss6624a1.htm
[v] Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016)
[vi] 505 U.S. 833 (1992)
[vii] Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016), Opinion of the Court, page 19.
[viii] Constitutionality of Indiana Abortion Laws Challenged in New Lawsuit, Indianapolis Star, Holly V. Hays, June 21, 2018. https://www.indystar.com/story/news/politics/2018/06/21/indiana-abortion-laws-constitutionality-challenged-lawsuit/723223002/
Health Groups Sue Virginia over Decades-Old Abortion Restrictions, The Hill, Jessie Hellmann, June 20, 2018. http://thehill.com/policy/healthcare/393324-health-groups-sue-virginia-over-decades-old-abortion-restrictions
Ana Brennan, J.D., is Vice-President of the Society of St. Sebastian and Senior Editor of the Journal of Bioethics in Law & Culture Quarterly.