125
A Winning Strategy
Approaching Abortion Bans with Prudence
By Clarke D. Forsythe, Senior Counsel, Americans United for Life
& Mailee R. Smith, Staff Counsel, Americans United for Life
I
n Roe v. Wade,1 the U.S. Supreme Court held
that the states may not prohibit any abortions before viability, a holding expressly reaffirmed by the Court in the 1992 case Planned
Parenthood v. Casey.2 Since Roe, several attempts have been made to enact abortion prohibitions—by Rhode Island in 1973, Utah in
1991, Louisiana in 1991, and Guam in 1991—
and all failed.3 Other attempts have been made
to induce the Court to reconsider Roe, and so
far they too have failed. For example, in 2005
a motion by the original “Jane Roe,” Norma
McCorvey requested the Court to revisit Roe;
it failed, with the Court refusing to even hear
the case.4
Over the last few years, however, a number of
states have debated and considered a variety of
abortion prohibitions (or bans), including the
following: prohibitions at or after 20 weeks
gestation based on fetal pain; prohibitions after viability; prohibitions on partial-birth abortions; delayed enforcement laws; and prohibitions on sex-selective abortions.
ISSUES
Prohibitions Based on Fetal Pain
In 2010, Nebraska enacted the “Pain-Capable
Unborn Child Protection Act,” banning abortions at or after 20 weeks based on the pain experienced by an unborn child. Despite promis-
es of an eventual legal challenge, the law went
into effect in October 2010. Momentum picked
up in 2011, with five more states enacting similar laws.
However, progress toward overturning Roe v.
Wade will depend, in large part, on raising public awareness of the negative impact of abortion on women through targeted legislation.
James Hunter’s analysis of the 1991 Gallup
Poll on “Abortion and Moral Beliefs” in his
book, Before the Shooting Begins, shows that
the American public sees abortion as two sides
of a coin: the impact (from abortion or restricting it) on the unborn and the impact (from
abortion or restricting it) on women. Hunter’s
analysis also shows that the public often adheres to a series of myths about abortion (particularly, its purported benefit to women) and
about Roe (the impact of overturning it). Unfortunately, some still see legal abortion as a
“necessary evil,” bad for the unborn child but
good for women (i.e., keeping them out of the
“back alley” by providing safe abortions).
For this reason, legislative and educational
efforts that only emphasize the impact on the
unborn are insufficient because they fail to
account for this paradigm. The public is concerned about both the impact on women and
the impact on the unborn from abortion or
from prohibitions and restrictions on abortion.
Defending Life 2012
126
The U.S. Supreme Court, along with some
[T]he medical judgment may be exercised
Americans, assumes that legal abortion is, on
in the light of all factors���������������
—physical,�����
emobalance, good for women. For example, Justional, psychological, familial, and the
tice Blackmun in the Court’s opinion in Roe
woman’s age—relevant to the well-being
relied on the assumption that “abortion is safer
of the patient. All these factors may relate
than childbirth.” The data the Court relied
to health.7
upon was thin and flawed, and no attention was
given to the longGiven this broad
term risks of aborof
...unless and until the Supreme definition
tion. Critically, the
“health,” which inCourt reviews and upholds a cludes psychologiAmerican public is
still not fully aware
post-viability prohibition, abor- cal and familial facof the true risks.
as well as phystions are legal throughout all tors
ical ones, it is clear
Recognizing
the
that under Roe and
nine months of pregnancy.
medical risks to
Doe virtually any
women of later-term abortions, specifically woman who wants to have an abortion after viabortions performed at or after 20 weeks, and ability may obtain one. Thus, it is accurate to
the impact of such abortions on the unborn say that, unless and until the Supreme Court re(namely, the pain felt by an unborn child dur- views and upholds a post-viability prohibition,
ing a later-term abortion), AUL has drafted the abortions are legal throughout all nine months
“Women’s Health Defense Act,” which pro- of pregnancy.
hibits abortions at or after 20 weeks except in
the case of a narrowly-defined “medical emer- In Casey, Pennsylvania’s post-viability provigency.”
sion was not challenged, but the Court did uphold the validity of the narrow medical emerProhibitions after Viability
gency exception in the Pennsylvania law. This
may suggest that similar language in a postDespite ill-informed claims to the contrary, a viability prohibition would pass constitutional
careful examination of Roe and its companion muster.
case, Doe v. Bolton,5 shows that abortions may
be performed for virtually any reason after vi- The Court did note that it is only in “rare cirability. In Roe, the Court held that after viabil- cumstances in which the pregnancy is itself a
ity “the State, in promoting its interest in the danger to [a woman’s] own life or health,” and
potentiality of human life, may, if it chooses, stated that “a woman who fails to act before viregulate, and even proscribe, abortion except ability has consented to the State’s intervention
where it is necessary, in appropriate medi- on behalf of the developing child.”8 Whether
cal judgment, for the preservation of the life this language means that states may prohibit
or health of the mother.”6 In Doe, the Court abortions after viability remains to be seen.
defined the health exception in an unlimited The lower courts are divided on this question.
fashion:
Americans United for Life
127
Finally, in Gonzales v. Carhart, the Court indicated that laws attempting to limit post-viability abortions by restricting the health exception can be valid (e.g., limiting such abortions
to significant threats to the mother’s physical
health).9 The impact of this decision also remains to be seen.
ited emotional health exception is required in
every abortion regulation; and (3) the conclusion that a health exception was not required in
order for the federal ban to be constitutional.
The Court noted that there is documented
medical disagreement about whether the Act’s
prohibition of partial-birth abortion would
To summarize, under Roe and Doe, abortions ever cause significant health risks to women.12
may be performed for any reason before viabil- Thus, the question became whether the Act
ity and for virtually any reason after viability, could stand when medical uncertainty persists.
and careful consideration must be given to any The Court answered this question in the affirdecision by a state to propose or enact a post- mative, noting that the Court itself has given
viability abortion prohibition.10
state and federal legislatures wide discretion to
pass legislation in areas where there is medical
Prohibitions on Partial-Birth Abortion
and scientific uncertainty.13 Further, the Court
expressly stated that medical uncertainty does
In 2000, the U.S. Supreme Court reaffirmed not foreclose the exercise of this discretion in
Roe and Casey and struck down the partial- the abortion context “any more than it does in
birth abortion prohibiother contexts.”14 In
tions of Nebraska and
Now that the Court has ex- concluding that the Act
29 other states.11 Seedoes not impose an unplicitly
upheld
the
federal
ing the procedure as
due burden on a womgruesome, dangerous
[partial-birth abortion] ban, an’s right to choose
to women, and mediabortion, the Court notthe time is ripe for state leg- ed its holding was supcally unnecessary, the
U.S. Congress thereafislatures to enact state par- ported by the fact that
ter passed the “Partial
alternatives are availtial-birth abortion bans.
Birth Abortion Ban
able to the prohibited
Act of 2003.” The Act
procedure.15
was immediately challenged in multiple federal courts, culminating in the Supreme Court’s Now that the Court has explicitly upheld the
2007 holding in Gonzales that the Act is en- federal ban, the time is ripe for state legislatirely constitutional.
tures to enact state partial-birth abortion bans.
While much of the general public believes
Significant for states considering partial-birth state bans are unnecessary because the federal
abortion bans are (1) the Court’s restoration of government has already banned partial-birth
the guidelines set forth in Casey that are more abortion, that assertion is incorrect for three
deferential to state legislation; (2) the Court’s basic reasons.
effective rejection of the claim that an unlim-
Defending Life 2012
128
First, the penalties for violating the ban could
be more stringent. For example, under the federal ban, violators can be fined or imprisoned
for no more than two years, or both.16 Contrast
that to the ban in Louisiana, passed after the
Gonzales decision, which states that a person
violating the law “shall be imprisoned at hard
labor for not less than one nor more than ten
years, fined not less than ten thousand nor more
than one hundred thousand dollars, or both.”17
Thus, there is room for states to pass laws with
stricter penalties.
Second, a state ban ensures timely and effective enforcement. If for some reason—such as
a pro-abortion administration—the U.S. Attorney General decides not to enforce the federal
ban, a state attorney general, along with local
prosecutors, could step in and enforce a state
ban.
Third, the federal ban may not reach the actions
of all abortion providers. In order for the federal ban to be triggered, the abortion provider
must either be on federal property (or a federal
employee) or engaged in interstate commerce.
While this is an area of law confusing even to
most attorneys, the gist of the interstate commerce rule is that a private individual or business must be engaged in the flow of business
across state lines in order for an offense to be
considered federal in nature. It is hard to imagine an abortion provider that does not in some
way engage in business across state lines.
Women may come from across state lines;
the abortion provider himself/herself may fly
in from out of state; and the clinic surely purchases items or instruments from businesses in
other states. However, to best ensure the eradication of partial-birth abortion, each state must
pass its own ban.
Americans United for Life
For states interested in introducing such a bill,
AUL has drafted a model bill entitled the “Partial-Birth Abortion Ban Act.”
Delayed Enforcement Laws
A few years ago, some states began considering and enacting delayed enforcement laws—
laws banning abortion that will go into effect
upon the occurrence of a specified contingency. States interested in considering such laws
must take into account several important legal
and practical considerations.
As a standard text on statutory construction
provides, “the power to enact laws includes the
power to fix a future effective date. . . . A
statute may take effect upon the happening of
a contingency, such as the passage of a law in
another jurisdiction, a vote of the people, or
the passage of a constitutional amendment.”18
There are two caveats to this general rule.
First, this power is determined by state law and
must be verified in each state. Second, while
the legislative authority to postpone an effective date to a future contingency seems fairly
well established, the “abortion distortion factor” of federal constitutional law should never
be taken for granted. In other words, a federal
court might hold that even the threat of a future
effective date has an unconstitutionally chilling effect on abortion today.
Assuming the legislature has the authority to
postpone an effective date, a number of factors must be considered. First, vagueness in
the statement of the future contingency should
be avoided. If a future effective date is conditioned upon the Supreme Court overturning
Roe v. Wade, does the Supreme Court have
to specifically or categorically overrule Roe
129
for the delayed enforcement provision to be- discriminatory procedures. It is, however, an
come effective? Second, consideration should area where pro-abortion advocates have little
be given to the relative expenditure of politi- ammunition to challenge such bills from a
cal resources
public policy
to enact an
163 million girls are missing in the world standpoint.
abortion probecause of sex-selective abortions.
hibition now
or sometime
in the future. Third, consideration should be KEY TERMS
given to what other laws might be enacted during the legislative session that will be enforce• Delayed enforcement laws are aborable now and have a positive impact in reduction prohibitions which delay enforceing abortion rates in the state by, for example,
ment until, for example, Roe v. Wade is
protecting women from the negative health
overturned by the U.S. Supreme Court
consequences of abortions, protecting minors
or the authority to prohibit abortion is
and parental rights through parental involvereturned to the States.
ment laws, and protecting unborn victims of
violence. All these factors should be weighed
• Dilation & extraction (D&E) is an
in the balance in considering an abortion prohiabortion procedure that involves dilabition with a delayed enforcement date.
tion of the cervix, the insertion of forceps to dismember the unborn child
Prohibitions on Sex-Selective Abortions
in the uterus, and the removal of body
parts one at a time. The intention is
In recent years, the practice of sex-selective
not to remove the child intact.
abortions has drawn increasing attention
worldwide. The problem is so severe in some
• Partial-birth abortion is, according
countries that, in 2005, the United Nations
to the language of the federal ban, “an
Population Fund termed the practice “female
abortion in which the person performinfanticide.” The practice is common in some
ing the abortion—(A) deliberately and
Asian countries, including China and India, but
intentionally vaginally delivers a livit is also being practiced in the United States,
ing fetus until, in the case of a headoften by people who trace their ancestry to
first presentation, the entire fetal head
countries that commonly practice sex-selective
is outside the body of the mother, or,
abortions. In 2011, author Mara Hvistendahl
in the case of breech presentation, any
reported in her book, Unnatural Selection, that
part of the fetal trunk past the navel is
163 million girls are missing in the world beoutside the body of the mother, for the
cause of sex-selective abortions.
purpose of performing an overt act that
the person knows will kill the partially
Lawmakers have begun focusing more attendelivered living fetus; and (B) pertion on the problem of sex-selective abortions,
forms the overt act, other than complebut so far few states prohibit such inherently
tion of delivery, that kills the partially
Defending Life 2012
130
delivered living fetus. . . .”19 The intention is to remove the child intact.
Partial-birth abortion is also referred
to as “intact D&E” and “D&X.”
•
•
Sex-selective abortions are abortions
undertaken to eliminate a child of an
undesired sex. The targeted victims
of such abortions are overwhelmingly
female.
Viability is the state of fetal development when there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or
her mother, with or without artificial
support.
MYTHS & FACTS
Myth: In order to challenge Roe, a state must
pass an abortion prohibition.
Fact: Legislators should know it is not possible to force the Supreme Court to take any
particular case, and it is not necessary to pass
a prohibition bill to spark a test case and reexamination of Roe v. Wade; the issue is not
the right bill but the right justices. The Court
reexamined Roe in Akron, Webster, and Casey,
though none of those cases involved an abortion prohibition. It would be advisable to seek
a reexamination of Roe (when a sympathetic
majority exists) with any statute that arguably
conflicts with Roe, asking the Court to broadly
return the issue to the people without having to
ask the Court to specifically approve the constitutionality of specific prohibitions.
Myth: The partial-birth abortion procedure is
entirely safe.
Fact: Medical evidence demonstrates that
Americans United for Life
partial-birth abortions pose drastic short- and
long-term risks for women undergoing the procedure.20 Short-term risks include bleeding,
infection, uterine perforation, lacerations, perforation of the uterine artery, traumatic uterine
rupture, and harm caused by dilation.21 Longterm risks include cervical incompetence and
preterm birth in subsequent pregnancies.22
Myth: Partial-birth abortion bans endanger
women’s lives by prohibiting a sometimes necessary procedure.
Fact: Well-established alternatives to partialbirth abortion exist.23 The Supreme Court
agreed, ruling that safe alternatives to partialbirth abortion exist.24 Furthermore, it has been
clearly established that partial-birth abortion is
not medically necessary for any maternal medical conditions, nor is it medically necessary for
any fetal abnormalities.25 In the challenges to
the federal ban, witnesses on neither side could
recall real-life conditions, in their own practices or otherwise, where partial-birth abortion
was necessary for a maternal medical condition.26 Furthermore, there are no valid medical
studies supporting the claim that partial-birth
abortion is ever medically necessary. Neither
an American Medical Association task force
nor an American College of Obstetricians &
Gynecologists panel could “find any medical
conditions” or “come up with any situations
that would require [a partial-birth abortion].”27
Even if the procedure was medically necessary
in some circumstances, the federal ban contains an exception stating that the procedure
may be used if “necessary to save the life of a
mother whose life is endangered by a physical
disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or arising from the pregnancy
131
itself.”28 Simply put, no woman’s life is in
danger because of a partial-birth abortion ban.
Myth: The Partial Birth Abortion Ban Act prohibits other forms of abortion, such as the practice of D&E.29
Fact: The Supreme Court specifically rejected
this argument, concluding that the federal ban
did not in any way infringe on the practice of
D&E.29
Myth: Even without a ban, partial-birth abortions are performed only to save the life of the
mother.
Fact: Abortionist Martin Haskell, who developed the partial-birth abortion procedure, has
admitted that 80 percent of partial-birth abortions in his own practice are done for “purely
elective” reasons, with the remaining 20 percent performed for “genetic reasons” such as
fetal anomalies or cleft palates.30 Based on the
fact the procedure is never medically necessary
for fetal anomalies, Dr. Haskell has effectively
admitted he never performs the procedure in
order to save the life of the mother.
Myth: Partial-birth abortion is necessary in
situations where there is a fetal anomaly.
Fact: Evidence further demonstrates that
the partial-birth abortion procedure is never
medically necessary for fetal anomalies.31 In
the challenges to the federal ban, not a single
witness could identify a fetal anomaly that required the procedure.32 Likewise, partial-birth
abortion is not necessary for a subsequent
diagnosis of a fetal anomaly, and in fact the
procedure makes it more difficult to diagnose
brain abnormalities.33
Myth: States do not need to enact partial-birth
abortion bans, because the federal government
already bans partial-birth abortion under the
Partial Birth Abortion Ban Act.
Fact: State partial-birth abortion bans are a
necessary step in furthering the state’s interests
in both the protection of women and the prevention of infanticide. These significant state
interests have been affirmed time and time
again by the U.S. Supreme Court.
State laws are also necessary to ensure enforcement of the ban, even when the federal
government is unwilling or unable to enforce
the federal ban. Further, state legislatures may
enact laws with stricter penalties.34
Endnotes
1
410 U.S. 113, 16 (1973).
2
505 U.S. 833, 846, 879 (1992).
3
Edwards v. Sojourner T., cert. denied, 507 U.S. 972 (1993).
Ada v. Guam Soc. of Obstetricians & Gynecologists, cert. denied, 506 U.S. 1011 (1992); Doe v. Israel, 358 F.Supp. 1193 (D.
R.I. 1973), aff’d, 482 F.2d 156 (1st Cir. 1973), cert. denied, 416
U.S. 993 (1973);
4
McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied,
543 U.S. 1154 (2005).
5
410 U.S. 179 (1973).
6
Roe, 410 U.S. at 164-65.
7
Doe, 410 U.S. at 179, 192 (citing United States v. Vuitch, 402
U.S. 62 (1971)).
8
Casey, 505 U.S. at 851, 870.
9
Gonzales, 550 U.S. 124 (2007).
10
Consideration should be given to the prudential question of
whether a specific post-viability prohibition will serve to reinforce an artificial biological demarcation (viability) that has no
relation to the humanity of the unborn child without significantly
reducing abortions, and whether any gain from a post-viability
prohibition is better served by a prohibition on partial-birth abortion or a ban on late-term abortions based on women’s health
concerns (such as AUL’s “Women’s Health Defense Act”).
11
See Stenberg v. Carhart, 530 U.S. 914 (2000).
12
Gonzales, 550 U.S. at 162.
13
Id. at 163
14
Id. at 164.
15
Id.
16
18 U.S.C. § 1531(a).
17
La. Rev. Stat. § 14:32.10(E). 18
Sands, Sutherland Statutory Construction sec. 33.07, at 17
(5th Ed.).
19
18 U.S.C. § 1531(b).
20
See Amicus Curiae Brief of American Association of Pro Life
Obstetricians and Gynecologists (AAPLOG) et al. at 12-15, Gon-
Defending Life 2012
132
zales v. Planned Parenthood Federation of America (SCOTUS
Case No. 05-1382), available at http://www.aul.org/xm_client/
client_documents/briefs/GonzalesvPP.pdf (last visited June 9,
2009) [hereinafter AUL Gonzales v. Planned Parenthood Brief].
The briefs authored by AUL and cited herein contain in-depth
analyses of the expert testimonies presented by both sides in
each of the three cases challenging the federal ban.
21
See id. at 12-14.
22
See id. at 14-15.
23
See Amicus Curiae Brief of American Association of Pro Life
Obstetricians and Gynecologists (AAPLOG) et al. at 26-27,
Gonzales v. Carhart (SCOTUS Case No. 05-380), available at
http://www.aul.org/xm_client/client_documents/briefs/GonzalesvCarhart.pdf (last visited June 9, 2009) [hereinafter AUL
Gonzales v. Carhart Brief]; AUL Gonzales v. Planned Parenthood Brief, supra, at 15-17.
24
Gonzales, 550 U.S. at 164-65.
25
See AUL Gonzales v. Carhart Brief, supra, at 7-15; AUL Gonzales v. Planned Parenthood Brief, supra, at 18-27.
26
See AUL Gonzales v. Carhart Brief, supra, at 7-14; AUL Gonzales v. Planned Parenthood Brief, supra, at 18-25.
27
See AUL Gonzales v. Carhart Brief, supra, at 7-14; AUL Gonzales v. Planned Parenthood Brief, supra, at 18-25.
28
18 U.S.C. § 1531(a).
29
Gonzales, 550 U.S at 150.
30
See D. M. Gianelli, Shock-Tactic Ads Target Late-Term Abortion Procedure, Am. Med. News (July 5, 1993).
31
See AUL Gonzales v. Carhart Brief, supra, at 7-15; AUL Gonzales v. Planned Parenthood Brief, supra, at 18-27.
32
See AUL Gonzales v. Carhart Brief, supra, at 14-15; AUL
Gonzales v. Planned Parenthood Brief, supra, at 25-27.
33
See AUL Gonzales v. Carhart Brief, supra, at 14-15; AUL
Gonzales v. Planned Parenthood Brief, supra, at 25-27.
34
For more information on the topics discussed in this article,
please visit AUL’s website at http://www.AUL.org.
Americans United for Life