An Abortion Storm is Brewing and It’s Heading for the Supreme Court

An Abortion Storm is Brewing and It’s Heading for the Supreme Court

-Christopher Carroll

A constitutional storm is brewing in America and it is heading slowly for D.C. On Monday, a judge in North Dakota blocked the most restrictive abortion law in the country. The law, passed in March 2013, was deemed unconstitutional on the grounds that it “is a blatant violation of the constitutional guarantees afforded to all women.” This law or one like it, could someday find itself argued before the Supreme Court of the United States.

This law was just one of many passed this year by Republican lawmakers across the country. Arkansas, Alabama, North Carolina and Texas state houses have all passed restrictions on abortions and all have, or likely will, be blocked in state courthouses.

The Court actions are not at all surprising. As noted by US District Judge Daniel L. Hovland in his decision today, the North Dakota law, while not outright making abortion illegal, would be so onerous on women and healthcare professionals that it “will effectively limit a woman’s ability to obtain an abortion to a single day during the pregnancy’s fifth week.” These laws may not make abortion illegal de jure because of the Roe v. Wade precedence, but they do make it de facto an impossible procedure to get legally.

 

It is not surprising that the states  have been pushing these laws. The Supreme Court has recently paid increasing deference to state sovereignty whenever State Law conflicts with Federal law.  If Republican state houses continue to push aggressive abortion legislation, we likely will eventually see them argued in Washington D.C before the highest Court.

While it is impossible to know when a case would finally make it that far and what the composition of the court may be by then, it is likely that the Court will be confronted with questions that put it between a rock and a hard place. Allowing extremely restrictive abortion laws to stand would keep in line with their recent preference for state power. However, in doing so, they would be forcing Women to withstand increased scrutiny and obligation, forcing them to adhere to laws unlike those of women in more liberal states and unlike any man in the country. Would the Court ignore their recent abhorrence for the creation of separate classes of people?

When the time finally comes, it will be interesting to see which direction the Supreme Court takes. Their aversion for different rules for different people has been splashed throughout judicial history, but old and new. Just this year, Justices Ginsberg and Kagan voiced their concern for inconsistent treatment of citizens in the DOMA case. However, as explained in a post on July 4th, the DOMA decision was simultaneously a deference to State jurisdiction, choosing to let the states handle the issue.

****

The Court’s were able to tread a very fine line in the DOMA case, managing to treat gay and straight couples the same way under the law while still maintaining their recent preference for a strong State. Will they manage to do that this time?

The fact that the new abortion restrictions are by design, and necessity, so specific will make it impossible for the Court to have it both ways. It will be extremely difficult to treat women in all states the same way and impossible to argue that men and women are being treated equally before the law. Unless men are going to be obliged to undergo X-rays and be restricted by law to certain places and times they can undergo vasectomy among other sensitive medical procedures, women and men will not be treated equally laws.  Though the states have passed these laws in a constitutional manner, the Court will have difficulty preserving their actions and power unless they ignore the inequality of the laws.

In the end, if these laws reach the Court, their constitutionality will come down to one question: which is more important, equal treatment before the law or state sovereignty. The answer surely is a rhetorical one: who are laws meant to serve?

Essay: It’s Time to Change the Abortion Discussion

Essay: It’s Time to Change the Abortion Discussion – New laws by Republican legislatures is making it clear that our national discourse is all wrong.

-Christopher Carroll

Marking just the latest episode in a line of Republican legislation meant to target abortion, Wisconsin Gov. Scott Walker signed a new, heavily restrictive, abortion bill into law on Friday.  This new legislation, and the spate of Republican abortion legislation nationwide, is doing damage to the rights and health of women while compromising the relationship between patient and doctor.  Legislators and our national discussion is focusing on the symptoms of a problem, rather than addressing the causes.

The bill, which goes into effect today, forces women to undergo an ultrasound before getting an abortion and requires any doctor who administers abortions to have admission privileges at a hospital within 30 miles of the abortion clinic.This will likely result in the closure of both the Planned Parenthood Appelton clinic and the Affiliated Medical Services Milwaukee clinic due to an inability to satisfy the admission privileges requirement of the law.

Ultrasound A 12 weeks 3 days 001 (Photo credit: Amanda’s Adventures)

The Wisconsin bill was signed with very little fanfare or publicity, seemingly buried by Gov. Walker within 17 other signed measures he signed on a long 4th of July weekend. This attempt to avoid press scrutiny and public repercussions reflects the volatility of the subject and the political danger it presents.

Nationwide, the GOP has felt that pushing anti-abortion, or “pro-life,” legislation at the state level is the best way to address the issue post Roe v. Wade, and given the Supreme Court’s recent treatment of “letter of the law” legislation and the emphasis placed on State power and sovereignty, they are likely correct.

***

Arkansas and Alabama have both recently seen new abortion legislation blocked by federal judges while the constitutionality of the laws is litigated. The Arkansas bill, the most restrictive in the nation when it was passed in May, banned most abortions after 12 weeks of pregnancy and the Alabama law, which was signed by Gov. Bentley in April, requires that that physicians providing abortive procedures have admitting privileges in a local hospital.

In North Dakota, Gov. Jack Dalrymple signed abortion legislation in April that bans the procedure after 6 weeks of pregnancy, (before many women know they are pregnant) making the state the most restrictive in the country.

While Wisconsin, Arkansas, Alabama and North Dakota have newly signed laws in place, the issue is being debated in the public eye in State Houses and newsrooms across the country.

New national scrutiny has been focused on Texas and Gov. Rick Perry following Senator Wendy Davis’ marathon filibuster to stop Texas House Bill 2, a bill that would ban abortions after 20 weeks, require that they be performed at ambulatory surgical centers and mandate that providers have admitting privileges at a hospital within 30 miles. Currently, only 5 of 30 clinics in Texas would pass these requirements.

***

The GOP is pushing these laws, all of which pass in exceptionally strong GOP states, under the pretext of helping women. The ultrasound requirement in Wisconsin is meant to improve “a woman’s ability to make an informed choice that will protect her physical and mental health now and in the future,” said Tom Evenson, a spokesman for Gov. Walker. Meanwhile the “admitting privileges” requirements are meant to make the procedure safer, and, as Gov. Bentley explains, provide “appropriate standards of care.” Both of these concerns are valid and compelling, but the methods and goals of the GOP are questionable.

Roe v Wade (Photo credit: Chris Wieland)

Women, and men, should have a strong understanding of the risks and repercussions of every medical decision, abortions included. However, this is not the job of the government, Gov. Walker, Republicans, or politicians in any state or community; it is the job of the patient and doctor. Dictating what procedures should be done, regardless of whether or not a trained physician deems them necessary, is an extreme example of government oversight. It is a short step from compelling ultrasounds to compelling more permanent medical procedures.

The safety of patients, on the other hand, is a concern of society and government. Both State and Federal governments mandate countless safety requirements in all aspects of our lives, from food regulation and water sanitation, to housing requirements, transportation standards and health care. The Guttmacher Institute, a non-profit NGO, released a report in 2012 claiming that 42,000 women die in the “developing world” each year as a result of unsafe abortions. These deaths are preventable and are a result of poor treatment and, most importantly, an absence of medical options and help. While the United States is not a developing country, the point is well taken: when people don’t have access to medical care, they resort to unsafe and unregulated means of treatment.

Userpage icon for pro-choice (Photo credit: Wikipedia)

The legislation that is repeatedly pushed by Republican governors, senators and congressmen, in effect, exacerbates the problem. Their legislation, while laboring under the pretext of making abortions safer, will make abortion services unavailable to thousands of women across the country. The void that this type of legislation leaves in it’s wake is at best misguided and at worst irresponsible.

The legality of abortion is an immensely complicated issue, invoking passion, anger and misunderstanding in those on both sides of the debate. The issue encompasses debate over contraceptives, poverty, health, social equality, sexual equality, age requirements and morals. In the end, nobody likes abortion and nobody wants children to be aborted. Nobody wants a mother to be put in the position where she must choose between a potential life of a child and her own well being. But public debate has been backwards.

Society has become obsessed with the act of aborting, rather than the factors that lead to it becoming necessary.  Instead, lets address why pregnancies are being aborted. Let’s address the education of our children and young adults. Let’s address the destructive repercussions of social inequality and economic polarity. Let’s address the childcare and parenting practices in our country. Our society should be about social activism, not social restriction. Our society should be one in which a woman’s life includes the ability to access safe abortion when faced with the unenviable and incredibly difficult decision to prevent the creation of a new life. Governor Walker and his cohorts should have no place in these decisions and our society shouldn’t let them.