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.

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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?