The Assault on Reproductive Rights Part 3: Unquestionably Unconstitutional
This year could turn out to be the most prolific in three straight years of new abortion restrictions. Anti-abortion legislators have passed dozens of measures since 2011, but this year’s legislation is the most extreme to date.
It started in Arkansas, where lawmakers approved a measure banning abortions when a fetal heartbeat can be detected by abdominal ultrasound. That can be as early as 12 weeks into the gestation process, or about halfway to the point of fetal viability. The U.S. Supreme Court decision Roe v. Wade guarantees a woman’s right to an abortion at any point prior to viability.
Arkansas Gov. Mike Beebe vetoed the measure, correctly noting that it was “blatantly unconstitutional.” The Legislature overrode that veto, making Arkansas America’s most restrictive state on the issue of reproductive rights.
Three weeks later, North Dakota passed a bill outlawing abortions when fetal heartbeats are detected by any means. With certain ultrasound tests that can be as early as six weeks, before many women even know they’re pregnant.
Lawyers.com reached out multiple times for comment from American Life League, Americans United for Life, Birthright International, National Right to Life Committee, Operation Rescue, Personhood USA and Susan B. Anthony List. Of those, only Americans United for Life responded, stating that Roe v. Wade “is a very flawed ruling that AUL knows will someday be overturned,” but declined further comment.
While they were at it, the North Dakota Legislature and Gov. Jack Dalrymple also banned abortions based on gender selection or genetic abnormalities. They approved a requirement that physicians in the state’s lone abortion clinic obtain patient admitting privileges at a local hospital, copying the strategy used to attack the last remaining clinic in Mississippi. They passed a separate unconstitutional ban cutting off abortion access at 20 weeks, based on the contested claim that a fetus can feel pain at that point.
Then, going one step further, they approved the nation’s first “personhood” amendment, which grants legal protections to the unborn from the moment of conception. That amendment will appear on the November 2014 ballot, and if voters approve it, North Dakota will prohibit all abortion, in any form, at any stage, with no exceptions for rape, incest or the life of the mother.
On the Taxpayer’s Dime
Attorney and constitutional law expert Joanne Fanizza says the proposed amendment reveals as much about the feelings of North Dakota’s legislators toward women as it does about their feelings toward the unborn.
“They want to ban abortion even in cases where the mother is raped, where she’s a victim of a crime, where it affects her health and well-being,” Fanizza said. “That’s clearly a violation of Roe v. Wade. They claim to be pro-life, but to whose life are they pro?”
Government attorneys in both states are preparing for what could become several expensive legal battles in defense of unambiguously unconstitutional statutes. Gov. Beebe vetoed the Arkansas ban for that very reason, explaining that taxpayers would likely end up paying for both the state’s losing effort and the challenging litigants’ court costs. Gov. Dalrymple had a simple solution, instructing lawmakers to “appropriate dollars for a litigation fund available to the Attorney General” before adjourning for the session. The Senate Appropriations Committee has since approved a $400,000 infusion for the explicit purpose of defending its losing proposition.
“They’re simply wasting taxpayer money pursuing dead cases,” said Fanizza. “When does the American voter get angry enough to put their foot down and say, ‘I’m not into these guys wasting our money?’”
Seeking a Supreme Showdown
Texas attorney Kelly Capps says certain states are taking extreme measures because political newcomers are “moving the right even further to the right.”
“They’re feeling that they have more power through the tea party movement, they have more power in the House of Representatives, and they feel like now is the time for them to ask for exactly what they want,” Capps said.
“Why would anyone think that now is a good time to try to take this back to the Supreme Court?” asked Capps, noting that the upcoming high court decision on marriage equality could offer greater understanding of the justices’ positions on social issues. “The mere fact that gay marriage is waiting in the wings, you would think that they would at least wait to see how that turns out.”
Anti-abortion organizations Personhood USA, the National Right to Life Committee and Americans United for Life declined to comment on their legislative strategies for this series. But these organizations have given indications of how they view themselves and the legal battles before them.
“We want to put the pro-abortion crowd on the defensive, just like Hitler was when he was forced to fight the Americans, British and Russians at the same time,” Gualberto Garcia Jones, attorney for Personhood USA, told conservative news site WND. “He didn’t have the forces to fight everywhere. That’s what we want to do to the pro-abortion supporters.”