The New Attack on Constitutional Reproductive Rights

JURIST Guest Columnist Caitlin Borgmann of the City University of New York School of Law says the new wave of anti-abortion legislation in Congress and state legislatures is aimed at pushing the limits of the current constitutional framework and prompting its abandonment...
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The scores of anti-abortion bills pending and passing across the country following the November elections, including that just passed by the House of Representatives, present an astounding array of schemes for curtailing abortion. The measures generally follow one of three lines of attack. The first approach is to push at the boundaries of the constitutional framework currently governing abortion laws and to make abortions as difficult as possible to obtain, even as women's right to abortion remains theoretically intact. A second approach aims to goad Justice Anthony Kennedy, the Supreme Court's swing vote on abortion, into beginning to dismantle that constitutional framework (which he helped to create). The final and most radical approach ignores the framework altogether and seeks to ban abortion from the earliest stages of embryonic development.

When the Supreme Court decided Planned Parenthood v. Casey in 1992, the controlling opinion, jointly authored by three justices including Justice Kennedy, weakened the constitutional protection for abortion and allowed more pre-viability restrictions than had been permissible under Roe v. Wade. In the wake of this decision, many states began to pass laws that did not ban abortion but made it more difficult to obtain. As long as these obstacles did not rise to the level of an "undue burden," courts upheld them. While some in the anti-abortion-rights movement have objected to this incremental strategy, it is supported by the National Right to Life Committee. Two of its leaders in a 2007 memo argued that the mounting restrictions will "translate into more disfavor for all abortions" and thereby ultimately help in overturning Roe.

In keeping with the chipping-away strategy, the first category of abortion restrictions aims to test the limits of what constitutes an "undue burden" by placing new obstacles in the path of women seeking abortions. South Dakota, for example, recently passed a law requiring women to wait at least three days (the longest waiting period in the country) after meeting with her physician before she can obtain an abortion. The woman also must first visit an anti-abortion center whose mission is to "consult[] with women for the purpose of helping them keep their relationship with their unborn children." These centers often feed women false, frightening information about abortion, such as it causes breast cancer, a claim discredited by leading medical authorities including the National Cancer Institute. In another popular effort to curtail abortion access, both state legislatures and members of Congress are seeking to prohibit even purely private insurance funds from being used for abortions.

The second type of abortion restriction, rather than merely stretching the limits of the current constitutional framework for abortion, endeavors to change one of its fundamental precepts and thereby set in motion the entire framework's ultimate collapse. The popular post-twenty-week abortion ban, first passed by Nebraska in 2010 and adopted by several other states in 2011, is the key example of this type of legislation. These bans prohibit nearly all abortions starting at twenty weeks after fertilization, when most fetuses are not yet viable. Currently, abortions may not be banned before viability, the point at which a fetus can survive outside the uterus. Because viability varies with every pregnancy (and sometimes never occurs, as for example when a fetus's brain does not develop), it must therefore be left for the woman's physician to determine. The viability principle was vigorously affirmed by Justice Kennedy and his joint opinion co-authors in Casey. Relying on dubious scientific assertions that fetuses can feel pain at twenty weeks after fertilization, conservative legislators have defended the post-twenty-week bans on the theory that the fetus's alleged ability to perceive pain justifies prohibiting abortions at this stage of pregnancy, even if the fetus is not yet viable. What they have not explained is why the legislation is not simply directed at alleviating this purported pain through the administration of anesthesia and instead bars most (though not all) abortions during the relevant period. The bans' plain intent is to replace the bright legal line that fetal viability currently occupies within the constitutional framework with the contested and uncertain concept of the onset of fetal pain perception.

The post-twenty-week bans' supporters probably recognize that it would be hard to persuade Justice Kennedy to abandon wholesale the right to abortion he upheld in Casey and instead hope to convince him to make a more modest change to the constitutional framework. Other legislators are more impatient and seek to jettison Roe entirely by banning abortion at the earliest stages of embryonic development. Some proposals do so by defining legal personhood as beginning at conception. For example, Alabama SB 301 provides that the "term 'persons' as used in the Code of Alabama 1975, shall include any human being from the moment of fertilization." These measures are the most radical, since they would not only ban all abortions and some forms of contraception, but could sow mass confusion in many other contexts including criminal laws, tax laws, inheritance rights, census-taking, assisted reproduction and other medical care, and far more.

Another bill that attempts to ban abortions throughout pregnancy is Ohio's "heartbeat" bill, a measure that asserts the fetal heartbeat, not the onset of fetal pain perception, is the milestone in embryonic development on which bans should be premised. This bill would ban abortions at the point when the embryo's heartbeat becomes "detectable ... according to standard medical practice." During the legislative hearing at which two fetuses were supposed to "testify" via amplification of their heartbeats, an ultrasound of a woman nine weeks pregnant failed to produce an audible heartbeat. Nevertheless, an embryo's heartbeat is generally medically detectable some time around four to five weeks after fertilization, meaning that such a ban would prohibit abortion from the beginning of the first trimester.

The variety of attacks on abortion seen across the country this year may seem scattershot and haphazard, but they all reflect the same unifying goal: to remove abortion as an option for women with unintended or untenable pregnancies and instead force women to carry those pregnancies to term. While the different approaches hew to different timelines for obliterating women's reproductive freedom, supporters of all three envision a day when a woman's ability to determine the fate of her own pregnancy is a thing of the past.

Caitlin Borgmann is a Professor at the City University of New York School of Law. She is the editor of the Reproductive Rights Prof Blog. She was the State Strategies Coordinator at the Reproductive Freedom Project of the American Civil Liberties Union for six years and was responsible for legislative and affiliate support, provision of legal advice, legislative strategy and communications support.

Suggested citation: Caitlin Borgmann, The New Attack on Constitutional Reproductive Rights, JURIST - Forum, May 6, 2011, http://jurist.org/forum/2011/05/caitlin-borgmann-constitutional-reproductive-rights.php.

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