Analysis Law and Policy

How to Save an Unconstitutional Abortion Ban, As Dictated by the Supreme Court

Jessica Mason Pieklo

The legal battle over Arizona's 20 week ban is a preview of the coming wave of legal arguments in defense of pre-viability and other unconstituitonal abortion restrictions.

There are a number of things to be troubled about in U.S. District Court Judge James Teilborg’s decision to uphold HB 2036, an Arizona law that makes it a felony to have an abortion after 20 weeks gestation. But one of the most dangerous signals in the opinion is the federal court’s willing acceptance of the idea that an otherwise unconstitutional abortion ban may be salvaged so long as that ban only affects just a few women. It’s a legal principle that first emerged in the abortion-rights context in 2006 and one that judges hostile to abortion rights are using to uphold radical restrictions on women’s rights.

Teilborg’s justification for upholding the Arizona law is grounded in a 2006 Supreme Court decision, Ayotte v. Planned Parenthood. That case dates back to 2003, when New Hampshire enacted the Parental Notification Prior to Abortion Act. The law prohibited physicians from performing an abortion upon a pregnant minor until forty-eight hours after written notice of the pending abortion was delivered to her parent or guardian and permitted a physician to perform an abortion without notifying the minor’s parent or guardian only if the procedure was necessary to prevent the minor’s death and there was insufficient time to provide the required notice; if a person entitled to notice certified that he or she had already been notified; or if notice had been waived in a judicial bypass hearing requested by the minor.

The Act was immediately challenged by a physician who performed abortions and three abortion clinics. The plaintiffs claimed that the law was unconstitutional because it contained no health exception, because the exception to prevent the minor’s death was too narrow and because it failed adequately to protect the confidentiality of the judicial bypass proceedings. The federal district court agreed, declared the Act unconstitutional and enjoined its enforcement. Anti-choice advocates appealed until the Supreme Court eventually took the case which vacated unanimously the appellate and district court opinions.

While Ayotte was largely about parental notification and consent, the real landmine in the decision is how the court justified overturning the lower courts findings that the New Hampshire law was clearly unconstitutional and in doing so set the stage for the current crop of aggressively unconstitutional abortion restrictions at the state level.

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In some ways the real damage from Ayotte can be considered “procedural.” There are two ways to challenge a law on constitutional grounds, through a “facial challenge” and an “as applied” challenge. A “facial challenge” seeks to strike down an entire law where an “as applied” challenge seeks to prevent the application of the law in particular, defined circumstances. Generally, the court has permitted facial challenges in areas like free speech rights because laws in those categories attempt to regulate fundamental rights, values held so dear in our constitutional jurisprudence that only the most narrowly-tailored restrictions are permissible.

However, federal jurisprudence has another parallel and competing doctrine, the so-called Salerno rule, which holds that a law can only be subject to a facial challenge if “no set of circumstances exist under which the act would be valid.” In the Ayotte decision the Supreme Court adopted the Salerno rule, with devastating consequences.

Justice O’Connor writing for the unanimous court, noted that the lower courts had chosen “the most blunt remedy” possible, “permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely.” (Ayotte, 546 U.S. at 330.) That was unnecessary because, as the Attorney General argued and as the plaintiffs conceded, “[o]nly a few applications” of the law “would present a constitutional problem.”  (Id. at 331.)

Flash forward not even a decade and the district court in Arizona adopts this reasoning to uphold a pre-viability ban that is in direct conflict with the precedent established in Roe v. Wade and in a case specifically crafted to challenge that precedent. The implications are clear. All potential abortion restrictions can pass muster under the Ayotte rule, so long as the number of women or practitioners they impact remains small.

Of course, those women most affected are those women most in crisis who already face significant hurdles accessing reproductive health care: poor women, women of color and women who live in remote parts of this country. For these women, their only hope of legal relief comes from lengthy, expensive, and fact-intensive litigation, a truth anti-choice advocates are counting on in their crusade to eliminate abortion rights across the country.

The Ninth Circuit Court of Appeals may have blocked the Arizona 20-week ban for now, but as we’ve seen with mandatory ultrasounds, mandated disclosure of false information on suicide-abortion links, and so-called partial birth abortion bans, the federal judiciary will uphold an abortion restriction whenever it can. And thanks to Ayotte and the abortion case law coming out of the Roberts Court, that could very well mean every abortion restriction can now be found to be constitutional.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.