Myths about Roe v. Wade

Hobby Lobby Day!

SCOTUS

As both an active member of the pro-life movement and a law student, I am frequently confronted with the fact that the vast majority of activists on both sides of the abortion debate have many misconceptions about what Roe v. Wade actually says about the legality of abortion. Most of this arises from the fact that they have not read the case themselves, or if they did read it, they were unable to understand it due to a lack of legal training. My goal is to attempt to clear up four of the most common myths surroundingRoe v. Wade, and the legal state of abortion in general, so that our conversations about the issue will be more informed going forward.

Myth #1: Abortion is a “Fundamental Right”

Many abortion supporters, including elected officials and leaders of pro-abortion organizations, will tell you that the Supreme Court declared abortion a fundamental right in Roe v. Wade, but this simply is not true. In fact, no majority opinion by the Supreme Court has ever declared abortion a fundamental right.

In Constitutional Law, there are three levels of “judicial scrutiny” the Court will use when deciding cases, these levels are: (1) Strict Scrutiny, (2) Intermediate Scrutiny, and (3) Rational Basis Scrutiny. When a fundamental right is at issue in a case, the Court must use the highest level of scrutiny, Strict Scrutiny. Under Strict Scrutiny, the Court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy being challenged.

While much of the language used in Roe seemed to imply Strict Scrutiny, the Court did not actually declare the right fundamental, and subsequent cases prove this. Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts, though often with contradictory results.

For example, the Court struck down all abortion regulations inPlanned Parenthood v. Danforth (1976), City of Akron v. Akron Center for Reproductive Health, Inc. (1983), and Thornburg v. American College of Obstetricians and Gynecologists (1986), but upheld similar and further regulations in Harris v. McRae (1980), Rust v. Sullivan(1991), Connecticut v. Menillo (1975), and Bellotti v. Baird (1976).[1]

In these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburgcalled abortion a “fundamental right,” the Court did not apply Strict Scrutiny.[2] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis, again ignoring the usual standard of review for “fundamental rights”.[3]

Finally, in 1992’s Planned Parenthood v. Casey, the Court clearly ruled that abortion is not a fundamental right by adopting an Intermediate Scrutiny approach known as “Undue Burden.” Instead of the government having to prove a “compelling interest”, the burden of proof was now placed on those challenging the law, who must prove that the law places an “Undue Burden” on a woman seeking an abortion. Since then, the “Undue Burden” standard has been used in every case dealing with abortion to be heard before the US Supreme Court, clearly showing that abortion is not a fundamental right.

Myth #2: Roe legalized abortion only in the first three months.

This myth was actually repeated by my Constitutional Law professor last year, until I corrected him, and is so pervasive that the vast majority of Americans genuinely believe that it is true. In fact, when polling is done regarding public opinions about Roe,many of the pollsters frame their question in these terms: “In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?”[4]

The actual ruling in Roe split the ability of governments to regulate abortion into three categories, based on the medical classification of trimesters. Under this trimester framework, the Court banned any regulations during the first trimester, allowed minimal regulations related to maternal health in the second trimester, and allowed most regulations in the third trimester.[5] In short, the Court actually legalized all abortions prior to viability,which it placed at about 28 weeks, which is about seven months, not three months.[6]

However, in both Roe and the companion case Doe, the Court ruled that even after the child is viable, there must be a “health exception” that allows the mother to abort for almost any reason:[7]

“All factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient…”

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases … the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”

Under these factors, pro-life legal scholars have pointed out that since the abortionist is the one who determines whether a woman’s health is at risk, the “definition of a woman’s health is so broad that there would never be a time when a woman could not find an abortionist willing to perform an abortion.”[8]

Myth #3: Overturning Roe will put women in jail.

Another common myth is that women would be thrown in jail for getting an abortion if Roe was overturned. However, Roe’s core holding is that abortion cannot be banned by the state, so overturning it would not result in a nation-wide ban on abortion; it would merely return the issue for the states to decide for themselves. In order for a nation-wide ban to occur, the Court would have to go a step further than just overturning Roe, and hold that the preborn are “persons” under the 14th Amendment, and therefore abortion is a violation of the Due Process Clause. Unless the Supreme Court did this in addition to overturning Roe, abortion would remain legal unless a state chose to expressly ban it.

While it is true that some states, like my home state of Louisiana, have trigger laws that would automatically ban abortion if Roe is overturned, most of them do not. The reality of a post-Roe America would most likely mirror the level of regulations that exist in the present day- conservative states with many current regulations might chose to ban abortion, more liberal states would leave their regulations the same and still allow abortions to continue as before.

Even in those states that would chose to  ban abortion, it would be very unlikely that women would be sent to jail for getting an abortion. Looking back pre-Roe, when most states banned abortion, there are only two known cases in which a woman was charged in any State with participating in her own abortion- one in Pennsylvania in 1911, and one in Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

In reality, the woman was typically treated as a second victim of abortion, the real target of these laws, and of the criminal prosecution that resulted from them, was the abortionist. Prosecuting a woman as an accomplice to the abortionist raised serious evidentiary problems that made it counterproductive- the testimony of an accomplice alone is not enough to meet the burden of proof in a criminal case, and the accomplice’s testimony must be corroborated by another source. It was difficult to prosecute abortionists under this requirement, and in order to convince women to testify against the abortionist, prosecutors had to promise them that they would not be charged for admitting to an abortion.[9]

Myth #4: Abortion bans were created to protect women because abortion was dangerous.

In their oral arguments before the Court, Roe’s lawyers argued that most state laws against abortion were implemented solely to protect the woman from a dangerous procedure; but this could not be further from the truth.  In fact, in the opinion Justice Blackmun wrote in Roe, he acknowledged that it was the attitude of the medical profession that played a significant role in the enactment of the stringent criminal abortion legislation of the late 1800s, and even quoted the American Medical Association’s 1857 report on abortion, in which the AMA called abortion an ”unwarrantable destruction of human life,” and called to upon state legislatures to revise their abortion laws and encouraged state medical societies to press the subject.[10] The result of this, which has been called “The Physician’s Crusade against Abortion”, was the implementation of many of the same abortion bans that were struck down by Roe nearly a hundred years later.

 Footnotes

[1] Planned Parenthood v. Danforth, 428 U.S. 52 (1976); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983);Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Harris v. McRae, 448 U.S. 297 (1980); Rust v. Sullivan, 500 U.S. 173 (1991); Connecticut v. Menillo, 423 U.S. 9, 10 (1975); Bellotti v. Baird, 428 U.S. 132 (1976).

[2] Thornburg, 476 U.S. at 772.

[3] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

[4] Harris Polling Question from The Wall Street Journal http://online.wsj.com/news/articles/SB114668092648642849

[5] Roe, 410 U.S. 154-6

[6] Id., at 160.

[7] Doe, 410 U.S. at 180; Roe, 410 U.S. at 149.

[8] Clarke Forsythe et al., Constitutional Law & Abortion Primer, 10 (William L. Saunders ed., Americans United for Life 2011) available at: http://www.aul.org/primer/.

[9] Forsythe, Clark, Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade. http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/

[10] Roe, at 141-2.

****I’ve done a shorter version of this post as part of my series about the Viability of Roe, but I wanted to update it and expand it for a full length article for Live Action. You can also read it here on their site.*****

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The Viability of Roe, Part 2: From Roe to Carhart

PartialBirth_Method

While Roe did not expressly declare abortion to be a “fundamental right,” in the wake of the decision many lower federal courts certainly interpreted abortion as such.[1] Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts. A brief overview of some of the major pre-Casey abortion cases will be beneficial in illustrating how the Court got from Roe to Casey:

  • Connecticut v. Menillo (1975) – In a per curium decision, the Court upheld Connecticut’s criminal prohibition against non-physicians performing abortions, stating that “Roe did not go that far.”[2]
  • Planned Parenthood v. Danforth (1976) – The Court upheld part of a state statute requiring a woman to give written consent prior to undergoing an abortion, but struck down spousal and parental consent requirements.[3]
  • Bellotti v. Baird (1976) – The Court this time upheld the requirement that a minor seeking an abortion must obtain parental consent, provided that there is the option for a “judicial bypass” whereby the minor can obtain consent from a judge if necessary.[4]
  • Harris v. McRae (1980) – The Court upheld the Hyde Amendment, which forbade federal funding of abortions. The Court reasoned in this case that abortion was not a fundamental right.[5]
  • City of Akron v Akron Center for Reproductive Health, Inc. (1983) – The Court struck down a 24 hour waiting period between the time a woman seeking an abortion received counseling, and when she could undergo the abortion procedure.[6]
  • Thornburg v. American College of Obstetricians and Gynecologists (1986) – The Court struck down a number of state regulations, including informed consent requirements, reporting requirements for abortion clinics, and regulations on the medical aspects of the abortion procedure.[7] Though the majority referred to “a woman’s right to make that choice [abortion] freely [as] fundamental,” they did not apply strict scrutiny in their rationale.[8]
  • Rust v. Sullivan (1991) – The Court upheld federal finding regulations that restricted federal funding from be awarded to family planning clinics that counseled for, or performed abortions. The Court relied on Harris in its decision.[9]

As demonstrated by these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburg called abortion a “fundamental right,” the Court chose not to apply a strict scrutiny standard of review in the case.[10] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis.[11]

A. Planned Parenthood v. Casey

The confusion over abortion law, as seen in the decisions listed above, intensified the national debate over the issue. In 1992, many believed that the Court was poised to overturn Roe, but instead, in Planned Parenthood v. Casey the Court decided to take a much narrower approach to redefining abortion jurisprudence.[12]

In taking a narrow approach, the three judge plurality purported to rely on the concept of stare decisis to reaffirm the central holding of Roe of “the right of the woman to choose to have an abortion before viability.”[13] In defense of this affirmation the plurality claimed Roe had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”[14] Furthering this argument, the plurality argued that overturning Roe would “seriously weaken the Court‘s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”[15] The plurality also relied on their belief that:

[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.  The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.[16]

 

In response to these claims, Justice Scalia and Chief Justice Rehnquist pulled no punches in their respective dissents. Answering the plurality’s argument that overturning Roe would weaken the Court, Justice Scalia had the following to say:

In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal.[17]

 

 

Likewise, Chief Justice Rehnquist’s dissent responded to the plurality’s claim regarding women’s social and economic equality with similar skepticism:

The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring.  Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men… The “separate but equal” doctrine lasted 58 years after Plessy, and Lochner’s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here.[18]

 

Despite these harsh criticisms from their fellow justices, the plurality still chose to interpret stare decisis in a way that prevented them from overturning Roe. However, while the plurality claimed to be reaffirming the central holding of Roe they made significant changes to the Court’s existing abortion doctrine.

One of the biggest changes Casey made was expressly abandoning abortion as a fundamental privacy right, and the accompanying strict scrutiny standard of review. This shift from privacy to liberty is evidenced in what is sometimes mockingly referred to as Casey’s “Mystery of Life Passage”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[19]

In place of the previous standard, the plurality described abortion as a “protected liberty interest” that was measured according to an intermediate level standard of review called “undue burden.”[20] The plurality defined “undue burden” as a regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”[21]

But what exactly is “undue”? Under this standard, the Casey Court upheld informed consent, a 24 hour waiting period, reporting requirements for abortion facilities, parental consent (with judicial bypass), and a definition of “medical emergency” related to abortion; the only Casey requirement struck down was spousal consent.[22] But it is only contextually through cases that we can truly determine which burdens the Court believes are “undue’, as the guideline is difficult to interpret in a vacuum.

Justice Scalia has long been a critic of the “undue burden” standard, arguing that it places the Court in the inappropriate position of making legislative decisions regarding abortion legislation that are not guided by the Constitution, but rather are guided by the personal opinions and feelings of the individual Justices.[23]

Another major change the plurality made to Roe was to abandon the trimester framework set down in Roe, and focus solely on viability as the “compelling point.” In their reasoning, the plurality claimed that “there is no line other than viability which is more workable” as a compelling point for state’s interest to take hold.[24] The plurality also justified viability by arguing that there is an “element of fairness” in choosing it, because “in some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”[25] At this time the Court also recognized that medical technology had advanced to the point that viability was now generally accepted to be at approximately 21 weeks post-fertilization.[26] Finally, the plurality says that “the trimester framework… [did] not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life.[27] Justice Kennedy, writing for the plurality, spends a considerable amount of time and space explaining the importance of the State’s “profound interest in potential human life.”[28] This is an argument Justice Kennedy would continue to defend eloquently in abortion subsequent cases.

In the opinion of the dissenters, Chief Justice Rehnquist, Justice White, Justice Scalia, and Justice Thomas, the state’s interest in protecting fetal life is profound enough to require that Roe be overturned in its entirety, so that states were free to ban abortion as they saw fit.[29]

B. Stenberg v. Carhart

The next major legal challenge to abortion came in 2000, when late term abortionist Leroy Carhart challenged Nebraska’s Partial-Birth Abortion Ban in Stenberg v. Carhart.[30] Nebraska’s ban sought to outlaw a specific method of abortion, which is described in gruesome detail in Justice Kennedy’s dissent:

[T]he abortionist initiates the woman’s natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. Witnesses report observing the portion of the fetus outside the woman, react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.” Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.[31]

 

Despite these grisly facts, the Court voted 5-4 that Nebraska’s Partial-Birth Abortion Ban was unconstitutionally vague because it did not adequately differentiate Partial-Birth Abortion from method, as well as finding that it violated the “undue burden” standard because it lacked a Roe style health exception.[32]

As the author of Casey, which he thought to be a grand compromise that would end the abortion debate once and for all, Justice Kennedy was furious and this can be seen in his scathing dissent. Justice Kennedy claims the majority in Stenberg has “a basic misunderstanding of Casey,”[33] and “contradict[ed] Casey’s premise that States have a vital constitutional position in the abortion debate.”[34] Additionally, Justice Kennedy accused the majority of “fail[ing] to acknowledge substantial authority allowing the State to take sides in a medical debate, even when fundamental liberty interests are at stake.”[35] To bolster this claim, Justice Kennedy cites the Court’s prior decision in Kansas v. Hendricks, where a man was convicted for refusing to receive the small pox vaccine.[36] In Hendricks, the Court ruled that disagreements among medical professionals “do not tie the State’s hands in setting the bounds of…laws. In fact, it is precisely where such a disagreement exists that the legislatures have been afforded the greatest latitude.”[37]

Justice Kennedy went on to argue that the Court was ignoring “substantial medical and ethical opinion[s]”[38] regarding this procedure, “which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”[39]

Justice Scalia also wrote a scathing dissent in Stenberg, in which he expressed his hope that “one day, Stenberg will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”[40]

C. Gonzales v. Carhart

Fortunately for Justice Scalia, he did not have to wait very long. In response to Stenberg, Congress held fact finding hearings on Partial-Birth Abortion, and eventually passed the Partial-Birth Abortion Ban of 2003.[41] The factual findings Congress used to support this Act included, among others, that:

  • A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion…is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
  • [Partial-Birth Abortion is] unnecessary to preserve the health of the mother, [and] in fact poses serious risks to the long-term health of women and in some circumstances, their lives.
  • A prominent medical association has concluded that partial-birth abortion is ‘not an accepted medical practice’…The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and the public, is ‘ethically wrong,’ and ‘is never the only appropriate procedure’.
  • It is a medical fact…that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.
  • In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life.[42]

 

Congress, hoping to avoid the impermissibly broad reading the Court used to strike down Nebraska’s Partial-Birth Abortion Ban, carefully crafted the descriptive language of the procedure. However, as seen in the Congressional findings listed above, Congress adamantly stuck by their belief that Partial-Birth Abortion was never medically necessary, and as such, did not include any language regarding a health exception to the ban.

Before it could even be signed into law by President George W. Bush, the Partial-Birth Abortion Ban of 2003 was challenged by abortionist Leroy Carhart, who had previously been the victor in Stenberg The resulting case, Gonzales v. Carhart, Court concluded that the legitimacy of the government’s interests in banning partial-birth abortions disproved the notion that the ban had the impermissible purpose of placing a “substantial obstacle in the path of a woman seeking an abortion.”[43]

Justice Kennedy once again wielded his pen in defense of State’s interests, composing the majority opinion of the Court. Justice Kennedy reasoned that the “central premise of [Casey]” was “that the government has a legitimate and substantial interest in preserving and promoting fetal life.”[44] In seeking to balance “the State’s interest in promoting respect for human life at all stages in the pregnancy,”[45] and a woman’s right to choose abortion, the Court ruled that the Partial-Birth Abortion Ban advanced a legitimate legislative purpose by “express[ing] respect for the dignity of human life,”[46] by promoting the state’s interest in “protecting the ethics and integrity of the medical profession,” and by preventing the “further coarsen[ing] [of] society to the humanity of…all vulnerable and innocent human life.”[47]

In finding that the Act’s lack of a health exception did not impose an “undue burden,” the Court considered the medical findings Congress relied upon to justify the Act.[48] This gave Justice Kennedy the chance to reiterate his arguments from his previous dissent in Stenberg, now held by the majority in Gonzales, regarding the right of a state to take sides in medical debates, ruling once and for that, “[m]edical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”[49]

The dissent in Gonzales harshly criticized the majority decision as, “blur[ring] the line, firmly drawn in Casey, between pre-viability and post-viability abortions.”[50]  Outside critics of the Court’s decision have gone even further, claiming that the fact that the ban applied both pre- and post-viability constituted “a direct violation of Roe’s bright line rule,” and that the Court’s decision to uphold it “demonstrated that the fixed point of viability can be bypassed.”[51]


[1] See e.g., Poe v. Gerstein, 517 F.2d 787, 789 (5th Cir. 1975); Friendship Medical Center v. Chicago Board of Health, 505 F.2d 1141, 1148 (7th Cir. 1974); Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974).

[2] Connecticut v. Menillo, 423 U.S. 9, 10 (1975).

[3] Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

[4] Bellotti v. Baird, 428 U.S. 132 (1976).

[5] Harris v. McRae, 448 U.S. 297 (1980).

[6] City of Akron v Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983).

[7]Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[8] Id., at 772.

[9] Rust v. Sullivan, 500 U.S. 173 (1991).

[10] Thornburg, 476 U.S. at 772.

[11] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

[12] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[13] Id., at 846.

[14] Id., at 867.

[15] Id., at 865.

[16] Id., at 856.

[17] Id., at 998 (Scalia, J., dissenting).

[18] Id., at 956-7 (Rehnquist, C. J., dissenting).

[19] Id., at 851.

[20] Id., at 877.

[21] Id.

[22] See generally, Id.

[23] Supreme Court Justice Antonin Scalia, Remarks to Baton Rouge Federalist Society (October 11, 2013).

[24] Casey, 505 U.S. at 870.

[25] Id.

[26] Id., at 860 (23 weeks LMP).

[27] Id., at 876.

[28] Id.

[29] Id., at 944.

[30] Stenberg v. Carhart, 530 U.S. 914 (2000).

[31] Id., at 959-60.

[32] Stenberg, 530 U.S. 914.

[33] Id., at 964.

[34] Id., at 963.

[35] Id., at 970.

[36] Kansas v. Hendricks, 521 U.S. 346 (1997).

[37] Id., at 360.

[38] Stenberg, 530 U.S at 797.

[39] Id., at 961.

[40] Id., at 953; Korematsu v. United States, 323 U.S. 214 (1944) (Upholding the constitutionality of the military imprisonment of thousands of American citizens of Japanese descent , in internment camps during World War II); Dred Scott v. Sandford, 60 U.S. 393 (1857)(Holding  that an African American slave is not a “person” under the U.S. Constitution; and was therefore the property of the slave owner).

[41] Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (2004).

[42] See 18 U.S.C. § 1531 (note following) (congressional findings for Pub. L. No. 108-105, §2, Nov. 5, 2003, 117 Stat. 1201).

[43] Gonzales, 550 U.S. at 160.

[44] Id., at 157.

[45] Id., at 163 (emphasis added).

[46] Id., at 157.

[47] Id.

[48] Id., at 165.

[49] Id., at 164.

[50] Id. at 186.

[51] Katia Desrouleaux, Banning Partial-Birth Abortion at All CostsGonzales v. Carhart: Three Decades of Supreme Court Precedent “Down the Drain”, 35 S.U. L. Rev. 543, 553 (2008); Jason Pill, Constitutional Law: Drawing A New Critical Line Between the State’s Competing Interests in Abortion Regulation to Comport with Social Palpability Gonazales v. Carhart, 127 S. Ct. 1610 (2007), 19 U. Fla. J.L. & Pub. Pol’y 369, 378 (2008).

“Adopt an Anti” instead of “Adopt a Child”

(this post first appeared on Live Action News)

The West Alabama Women’s Center is asking pro-abortion supporters to “adopt” an “anti” by donating a certain amount of money each time pro-life activists show up at the clinic to offer support and information for women facing crisis pregnancies. Among those listed is my friend and fellow Student for Life Wilberforce Fellow, Claire Marie Chretien, who is the president ofBama Students for Life at the University of Alabama and a contributor to Live Action News. Claire is apparently worth $5, which is an obvious and massive undervaluing if you’ve ever seen her in action!

Screen shot from The West Alabama Women's Center Facebook Page.

Screen shot from The West Alabama Women’s Center Facebook Page.

Far from being discouraged by this, members of Bama Students for Life are proud to add this distinction to their already impressive pro-life résumés, which include hosting the Genocide Awareness Project, which has led to repeated attacks on the group in the student paper, The Crimson White.

When I asked Claire how it felt to be personally targeted by the clinic, she said:

Nothing screams desperate more than an abortion center’s fake fundraising off of Tuscaloosa 40 Days for Life.  While we save babies from abortion, the West Alabama Women’s Center is trying to get people to send them checks to fund even more abortions.  This certainly isn’t helping their reputation as a greedy business or as “pro-choice,” given that the only choice they’re promoting, while mocking adoption, is abortion.  Bama Students for Life is not about to cease our peaceful presence outside the West Alabama Women’s Center just because abortion supporters are uncomfortable with how effective we are.

As Claire points out, there is a glaring irony in an abortion clinic using “adoption” as a fundraiser to promote the killing of children who could otherwise be given a better life through a true adoption.

As someone who was adopted, I find the use of adoption in this way to be completely disgusting. This clinic is already making money off desperate women who feel they have nowhere else to go, and trying to profit from a perversion of adoption is disrespectful and tasteless.

Imagine if groups like the West Alabama Women’s Center actually spent this much time, effort, and money promoting actual adoption! But of course they would never do that, because it would affect their pocketbooks – they can’t profit from real adoption. As Live Action has repeatedly pointed out (hereherehere, and here, just to show a few), abortion is not about offering women choices. It’s about making money – so we really can’t be surprised that this business is seeking to fill its coffers even more.

Protecting Women: Why Texas’ HB 2 Will be Upheld

(this article appeared at http://law.studentsforlife.org/2013/10/11/protecting-women-why-texas-hb-2-will-be-upheld/)

I was proud to travel to Austin this summer with SFLA to see the Texas legislature pass HB 2, which protects women and innocent children from shoddy abortion practices. While we were elated that HB 2 passed, we knew a legal challenge was coming, and on September 27th Planned Parenthood, along with other abortion providers, filed suit against Attorney General Greg Abbot and other Texas governmental officials.

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Planned Parenthood’s lawsuit currently challenges only two of the provisions included in the bill: 1) the requirement that doctors performing abortion have active admitting privileges at a hospital within 30 miles of the abortion facilities; and 2) that medication abortions using RU-486 must follow the already-existing FDA protocol for administration and follow-up. The 20 week ban is based onscientific research stating that at least 20 weeks, preborn children can feel pain, is not being challenged. It is rumored that this is because the Federal Court of Appeals in Texas is conservative enough to rule against Planned Parenthood, and they don’t want any rulings that could give the Supreme Court a reason to uphold such a ban.

In the lawsuit filed last week, Planned Parenthood claims that one third of the abortion providers in Texas would be forced to close because of these two regulations, though they never actually show how they reached that estimate. Only the admitting privileges requirement should have an effect on the operation of these abortion clinics, as the RU 486 regulation only affects how it is administered, and doesn’t ban the practice altogether.

After falling back on tired and disproven claims like “abortion is safer than childbirth”, Planned Parenthood attacks Texas’ decision to require clinics to follow the FDA approved regimen for use of the dangerous RU 486 drug. Currently the FDA regulations dictate that the drug is safe for use at the recommended dose up 49 days into a pregnancy, yet many clinics vary the dosage and use the drug two weeks past the FDA approved date. This requirement would also prevent clinic staffers who are not doctors from administering the drug, and would require the patient to return to the clinic for the second dose of the drug instead of taking it without any supervision at their home. Finally, it would require a flow-up appointment to assure that the abortion was completed, and that no part of the aborted child remains in the womb which, left un-removed, leads to infection and even death of the mother.

Planned Parenthood is hinging its argument against the RU-486 regulations on the idea that they are medically unnecessary, and cite a few organizations (including one outside the US) who agree.  But as Justice Kennedy pointed out in the 2007 case Gonzales v. Carhart, “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”

The Supreme Court also noted in Planned Parenthood v Casey, that “not all burdens on the right to decide whether to terminate a pregnancy will be undue”, and acknowledged that a state’s interests in protecting unborn life,  in preserving the integrity of the medical profession, preventing the coarsening of society’s moral sense, and promoting respect for human life more generally, are strong enough to warrant restrictions prior to viability that make abortion more difficult or expensive to obtain.

At the trial level, both sides will present medical evidence in regards to this issue, but it is in keeping with precedent for the courts to defer to the Texas Legislature’s medical regulations on the administration of the RU-486 abortion drug, despite some doctors disagreeing with the judgment. Additionally, as there are alternative abortion methods available, the undue burden argument is hard to support. However, Planned Parenthood challenges this by contradicting their own multiple claims regarding the safety of abortion, saying that it could significantly endanger a woman’s life to have to use an alternate method of abortion.

The second regulation deals with requiring abortion doctors to have admitting privileges at a hospital within 30 miles of the clinic.  Planned Parenthood makes two allegations in regards to this requirement: 1) that it places an undue burden on women seeking abortion, due to its potential to limit the number of doctors who can perform abortions in Texas, and 2) that the requirement is “unconstitutionally vague” because, apparently, Planned Parenthood doesn’t know what the word “active” means in the context of “active admitting privileges”.

Now the first allegation is based on their previous claim that this would force one-third of Texas’ abortion clinics to close, which again, is not supported by the factual statements contained in the lawsuit. In fact, Planned Parenthood admits that some of their providers have already been able to secure admitting privileges, and many are still waiting to hear back from hospitals.

Additionally, this whole argument is based on Planned Parenthood’s opinion that the criteria Texas’ hospitals use when deciding whether to grant admitting privileges, is “unrelated to a physician’s ability to provide high-quality abortion care.” But some of those criteria include things like board certifications, malpractice history and reported complications, level of experience and expertise, and validation of educational credentials- how are these issues not relevant to the quality of care a woman receives in these clinics? The country recently saw the reality of what takes place in abortion clinics with the horrifying Gosnell trial. There is no doubt in the minds of many people that a regulation like this one would have exposed Kermit Gosnell as the murderous man he really was- but instead he was able to escape notice due to a lack of enforced regulations.

Since Planned Parenthood v. Casey, the Supreme Court has repeatedly held that a State has a compelling interest in the safety of the mother who is undergoing an abortion, in the preservation of the integrity of the medical profession, and in recognizing the dignity of human life. Additionally, since Casey the swing vote on abortion – Justice Kennedy – has not voted against any regulations on abortion that has been proposed. Therefore, there is precedent for being permissive in relation to abortion regulations. For these reasons I believe it is likely that the Texas regulations will be upheld.

A (very) Brief Critique of Roe v Wade

 

 

This week we finally got the the one case that convinced me to go to law school in the first place: Roe v Wade.

I went up to my Con Law professor after class on Monday and explained to him that our next class would be covering an issue that I feel very strongly about, abortion. I volunteered to voice the side of life, and he agreed to allow me to defend my beliefs.

I am both overjoyed and humbled that I was given this opportunity. While it may not be for points, I could help change the mind of a fellow student, that maybe that student will argue it before the Supreme Court, or maybe they’ll be the judge overturning it, or maybe they’ll just remember my words when they or someone they love is faced with an unplanned pregnancy.

So, here is my very brief critique that I gave in class this morning at LSU Law

Pro-Life Hulk

When I get angry I shake uncontrollably… sometimes I’m afraid I’m going to explode into a hulk-like monster when I do this. But it takes a certain type of thing to make me that angry, and as I read the LSU Reveille today- it happened.  There was an article about why Planned Parenthood should receive government funding, and the “arguments” not only pissed me off, they turned my stomach. Let’s take a look:

1. By the regulations put in by federal law, Planned Parenthood can’t put any of their government funding into abortion services because it isn’t considered to be family planning.

This is strangely worded to begin with, but I’m guessing she means that they aren’t allowed to pay for abortions with federal money. And this is true, but it is also a mere technicality. In 2011 (the most recent numbers available), federal taxpayers were forced to give Planned Parenthood $524,000,000 which accounts for nearly half of their total budget and doesn’t include state tax dollars given to regional Planned Parenthood affiliates.  With about half of their revenue coming from tax dollars, we are indirectly subsidizing abortion, even if the money isn’t going to directly going to pay for them. It is just a bait and switch argument. If it wasn’t for this funding, they wouldn’t be able to operate the clinics, or hire the doctors that perform the abortions.

2. Only three percent of all the services it (Planned Parenthood) provides are abortion.

Pro-aborts LOVE this argument, and never bother to examine how Planned Parenthood came up with this number. They did it by counting every single little thing they do as a separate “service.” Let’s look at one appointment and find see how many services we can count using Planned Parenthood counting. You walk in and get a pregnancy test, 1 service. Since you’re sexually active, they recommend you get an STD test too- that’s another service, now we are up to 2. The doctor asks you if you are on the pill and if you’re happy with the type you are on- that’s “birth control counseling” and the count is 3. The doctor does a pelvic exam and pap smear- 2 more services, now you’re at 5. Finally as you walk out the door, he gives you 5 condoms, and each one is counted as a service. So that is 10 services at one appointment. They do the same thing with counting the abortion process. Legally, you must take a pregnancy test, receive counseling and view an ultrasound prior to getting an abortion; Planned Parenthood counts each of those as an individual service, and not as part of their abortion services.

Additionally, a lawsuit recently settled by Planned Parenthood in Texas resulted in them paying the Texas Government over $4 million for charging state Medicaid for services that were never rendered, meaning that they falsified the number of services provided.

The 3% number is clearly false, so let’s look at some other numbers:

  • 1 in 4 abortions in America are performed at a Planned Parenthood clinic or affiliates
  • Planned Parenthood performed 915 abortions per day
  • 92% of pregnant women who go into a Planned Parenthood get an abortion
  • Planned Parenthood does 391 abortions for each adoption referral it provides
  • In 2011, Planned Parenthood made $150,000,000 in profit on abortion procedures.
  • There are over 8,000 community health centers that provide low cost healthcare without profit from abortions.

3. Conservative government officials, mostly men, are the ones trying to take away these fundamental and essential care options.

Ah, the classic pro-lifers are mostly men argument. While pro-life elected officials are mostly male, the same is true of pro-abortion elected officials, and elected officials in general. Women make up over 50% of the voting public but hold less than 5% of elected offices. So the governmental argument is non-unique to the pro-life side of the argument.

But if you look at who the leaders of the pro-life movement you’ll see that it is mostly women! Some examples include women such as Abby Johnson, Live Action’s  Lila Rose, Charmaine Yoest who is President of Americans United for Life, Carol Tobias who is President of National Right to Life, Marjorie Dannenfelser who is President of SBA List, Concerned Women for America, and Alveda King, the niece of Dr. Martin Luther King, Jr. Oh and not that I’m in the same league as these amazing women, but last time I checked I was a woman. I’ve been to my share of pro-life meetings, lectures, and events, and in my experience women almost always outnumber the men by a large number.

Additionally, the last time Gallup did a study on abortion views, an equal percentage of men and women polled said that they believed abortion was “morally wrong”. 51% of both genders agreed on this. Furthermore, 5% more women than men felt that abortion should be illegal in all circumstances. Nearly a quarter of all women polled would be in favor of making abortion illegal in all cases. Recent polls on Pain Capable Abortion Bans show that actually women support these bans by a significant majority.

4. All abortion arguments and stances aside, here is the cold truth about them: unless you’re the person getting the abortion, abortions don’t affect you. Read that again, because few people understand this concept.

This is the same “logic” as the oft repeated line “Don’t like abortions, don’t have one” and is laughable at best. Martin Luther King told us that “injustice anywhere is an affront to justice everywhere,” and we see the truth of that in many of history’s greatest movements.

Take slavery for example- William Wilberforce was a member of British Parliament who was decidated to ending the slave trade, would you tell him “don’t like slavery, don’t own slaves”? Slavery didn’t directly affect him, but his heart broke for his fellow humans and the atrocities that were being perpetuated against them. The rallying cry for British abolitionists was “Am I not a man and brother?”. I ask the same question- if I see a travesty occurring at my neighbor’s home am I supposed to ignore it? What about other things that don’t affect Americans- genocides in other countries and natural disasters that occur overseas? Should we have ignored the Holocaust? Should we ignore Joseph Kony and his indentured army of enslaved child soldiers? Should we keep our money for ourselves next time a tsunami kills and displaces millions of people in another country? Of course not! Because Dr. King was right, “injustice anywhere is an affront to justice everywhere”.

5. You may love babies and you may think that taking away a person’s right to “kill” said “baby” is making the world a better place, but the only real thing you’re doing it using your hate and narrow- minded belief about the sanctity of life to dictate someone else’s.

Honestly, this one just confused me… how is it hateful to protect vulnerable human life? It seems infinitely more hateful to me, to rip a baby apart piece by piece and then vacuum it out of the womb. Because that is the reality of abortion.

Oh wait, I called it a baby, not a “baby”. I’m guessing the author would rather you call the preborn child a fetus. Which is fine because fetus is just Latin for “offspring according to its kind” and our kind, humans, call our offspring babies… so fetus pretty much means baby.

I suppose “the narrow-minded” claim could be truthful, but it’s not a bad thing. Abortion abolititionist Greg Koukl sums it up clearly: “If the unborn is not a human person, no justification for abortion is necessary. However, if the unborn is a human person, no justification for abortion is adequate.”

I could write a whole different article on scientific facts regarding fetal development, but a picture I took at a protest in San Antonio this summer handles it pretty well. The guy holding it was a member of the group Secular Pro-Life, a group of atheist and agnostic pro-lifers. Here’s the picture:

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And finally, the part that truly pissed me off:

6. People in favor of defunding this wonderful service need to look past the silly three percent of abortion services and see the bigger picture.

There is nothing SILLY about abortion. Most pro-abortion advocates will admit that, and say that it is a very difficult decision. This author disagrees. She thinks that 333,964 innocent, helpless, vulnerable human beings being killed is SILLY. There are no words to accurately describe the disgust I feel when I read her sentence. 333,964 human beings. 333,964 voices silenced. I won’t ignore that. I won’t “look past” it.

I AM THE PROLIFE GENERATION!

 prolifegen

“We will not stand down. We will expose injustice. We will fight against the lies told to our generation. We will face persecution. We will help those facing crisis. We will fight against a third of our generation being taken out before they are born. We will not be silent. We will not back down until abortion is abolished.”

–Students for Life of America