Analysis Abortion

Arizona Attorneys Outline Why Roberts Court Should Revisit ‘Roe’

Jessica Mason Pieklo

It's time to do away with the viability test for restricting state power to ban abortion, attorneys defending Arizona's "fetal pain" ban argue.

On Thursday, attorneys for the State of Arizona filed a petition for review with the Supreme Court in the case of Horne v. Isaacson, a challenge to the state’s 20-week abortion ban. The ban and subsequent litigation are a direct challenge to a central component of Roe v. Wade that holds states may not ban abortion pre-viability. And if the Roberts Court agrees to hear it, the case could be argued later this year.

The state’s petition outlines three issues it wants to raise to the Roberts Court, and much like the law in dispute, those issues directly take on the use of fetal viability as a constitutional bright line in limiting state power to restrict abortion access.

The first issue the state attorneys want the Court to answer is whether viability is the “only critical factor in determining constitutionality, to the exclusion of other significant governmental interests” in state abortion bans, or whether Arizona’s pre-viability ban is “facially valid because it does not pose a substantial obstacle to safe abortion.” The second issue up for debate is whether the Ninth Circuit Court of Appeals got it wrong when it declined to “recognize that the State’s interests in preventing documented fetal pain, protecting against a significantly increased health risk to the mother and upholding the integrity of the medical profession” are “sufficient” to support a pre-viability ban in cases where the life of the pregnant person is not at risk. And lastly, the attorneys want the Court to revisit Roe and its progeny altogether to determine if “in light of the recent, compelling evidence of fetal pain and significantly increased health risk to the mother for abortions performed after twenty weeks gestational age,” Roe and those decisions that follow should still be law.

To set up the direct challenge to Roe and the fetal viability standard, the state’s attorneys ground their legal challenge in a political strategy developed in the fight over “partial-birth abortion” bans. The state’s petition opens by directing the Court’s attention to Gonzales v Carhart, the Supreme Court decision that upheld a prohibition on the federal “partial-birth abortion” ban.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The attorneys for Arizona do this for a couple of reasons. First, they do it for the proposition that it is the Court’s duty to defer to legislative findings when enacting abortion restrictions. Second, they join together the hyperbole that marked the debate around the “partial-birth” bans with so-called fetal pain bans to provoke similar outrage to justify a pre-viability ban, by arguing that like the “partial-birth” bans, Arizona’s law “upheld the integrity of the medical profession by ‘drawing a bright line between abortion and infanticide.'” From there, the attorneys noted that lawmakers made legislative findings of their own to justify the pre-viability ban. Attorneys for the state also note in their petition that 12 other states have similar bans, all based on similar legislative findings. If, attorneys argue, 13 states believe the “science” supports pre-viability bans, then doesn’t the Roberts Court think it’s time to re-visit Roe?

The state also relies on the reasoning from the district court that initially upheld the Arizona law, which explains that because the law has a narrow exception for the life or health of the pregnant person it is not a total ban, even if it violates Roe’s pre-viability standard.

Notably, though, while the Arizona law is purportedly necessary because of the “science” of fetal pain, attorneys for the state spend most of their focus pivoting the framing of the constitutionality of abortion access away from the fundamental rights of the pregnant person and to the power of the state to regulate reproduction in the name of potential fetal life. Simply put, states are looking for a way to significantly expand their police powers and see fetal pain bans as one avenue to do so. And it squarely sets up for the Roberts Court the proposition that the only obligation the state has to ensuring access to abortion care is to not provide “substantial obstacles.” And as we’ve seen recently in the Fifth Circuit, even laws that drive providers out of business and cut off the availability of abortion services can survive the “substantial obstacle” test.

Those challenging the law have until November 29 to file their response to Arizona’s petition. Then the Supreme Court will take the request under consideration and decide whether or not to take the case.

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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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.