Analysis Law and Policy

Attorneys Urge Federal Appeals Court to Take First Step in Overturning ‘Roe’

Jessica Mason Pieklo

Tuesday's oral arguments in legal challenges to two pre-viability abortion bans show anti-choice advocates are more empowered than ever to gut constitutional protections for legal abortion.

During the onslaught of anti-abortion legislation of 2014, a powerful truth emerged: When those who oppose legal abortion hear the personal stories of pregnant people who have chosen to terminate, they are more likely to shift their view about whether the procedure should be legal.

So it’s no wonder then that anti-choice advocates spent every precious second of Tuesday’s oral argument time before the U.S. Court of Appeals for the Eighth Circuit intellectualizing abortion rights and controlling, whenever possible, the narrative of who, how, and when abortions happen. For the most part, the conservative justices of the Eighth Circuit were only more than happy to help them along.

At issue before the federal appeals court are two different, but related, anti-abortion laws that directly attack the rule that states do not have the power to ban abortion prior to fetal viability. First is a legal challenge to an Arkansas law that bans abortion when a fetal heartbeat has been detected, and at 12 weeks of pregnancy. Last March, a federal district judge permanently struck down the ban, saying the extreme measure would “prevent a woman’s constitutional right to elect to have an abortion before viability.”

Second is a challenge to a North Dakota law, considered to be the most extreme in the country, that bans abortion as soon as a fetal heartbeat is detected, which can be as early as six weeks of pregnancy. A federal district court judge temporarily blocked the ban in July 2013 and then permanently blocked the law in April 2014, noting that “the United States Supreme Court has spoken and has unequivocally said no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability.”

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There are a couple of important points to note about the Eighth Circuit. The conservative circuitwhich covers Minnesota, North Dakota, South Dakota, Iowa, Missouri, Nebraska, and Arkansas—helped produce the most recent, and dangerous, Supreme Court jurisprudence on abortion rights, Gonzales v. Carhart, a Roberts Court decision that has empowered anti-choice lawmakers to pass abortion restrictions grounded in junk science, with very little the courts can do to stop them. The Eighth Circuit has also endorsed state-scripted anti-abortion disclosures that force providers to recite them under the guise of a patient’s “informed consent.”

The Eighth Circuit is in many ways as conservative and anti-choice a federal appeals circuit as the Fifth Circuit, which infamously created a recent human rights crisis in Texas.

That judicial activism was on full display during Tuesday’s argument, with the justices searching for a measured way to overturn the two district court decisions blocking the restrictions. The justices were three George W. Bush appointees: Judge Bobby Shepherd; Judge Duane Benton, a former political appointee of then-Missouri Governor John Ashcroft; and Judge Lavenski Smith, a Mike Huckabee political ally whose appointment was opposed by both Planned Parenthood and NARAL Pro-Choice America. Defending the Arkansas and North Dakota laws were assistant Arkansas Attorney General Colin Jorgensen and private attorney Daniel Gaustad, both of whom defended the radical power grabs by their respective states as important and necessary evolutions in the law.

“We can’t look at these kinds of cases in the vacuum of Roe v. Wade any longer,” argued Jorgensen as he pressed the judges to overturn fetal viability as the bright-line limit on state power to regulate reproductive rights.

Gaustad took Jorgensen’s argument even further, arguing for the Eighth Circuit to declare a bench trial on the question of when fetal viability occurs. The facts and circumstances that led the federal courts to declare a right to abortion have changed to such a degree, Gaustad argued, that the entire issue of abortion rights should be reopened.

“The underpinnings of Roe and Casey have been invalidated,” Gaustad claimed.

Those underpinnings, both attorneys claim, include the fact that both states have in place “safe haven” laws that allow pregnant people to surrender live births to the state and relinquish parental rights. According to both Jorgensen and Gaustad, those laws relieve women of their “undue burden” of the legal responsibilities that come with the compulsory birthing their restrictions would ensure.

As to whether they believe the undue burdens associated with carrying to term a pregnancy as mandated by the state, the attorneys were predictably silent.

What are the attorneys for Arkansas and North Dakota aiming for here? What’s their endgame? Yes, both are defending state-level anti-abortion restrictions. But more broadly, they’re trying to push the court to build on an oft-forgotten Supreme Court decision, Colautti v. Franklin, that stumbles around the definition of “viability.” Should they be successful, the result would effectively establish embryonic “personhood” and eradicate abortion rights, all without pushing the justices into the uncomfortable position of being the first federal appeals court to directly contravene abortion rights law.

“All else being equal, it’s undisputed it’s better for a woman to have an abortion earlier than later,” Jorgensen said. “The state would prefer there be no abortions, but we’re not allowed to do that at this time.”

Colautti v. Franklin is a 1979 decision involving a Pennsylvania anti-abortion law that was ultimately struck for being too vague. But in the decision, the Supreme Court discussed the issue of viability and what it means in relation to restricting abortion rights. There, the court said that “viability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.”

The justices seized on this definition, prodding attorneys for the state and from the American Civil Liberties Union and Center for Reproductive Rights on whether the question of when viability occurs is a matter of fact—if so, the Eighth Circuit could send the case back to the lower court.

Gaustad saw his opening and took it, arguing that medical technology such as in-vitro fertilization has advanced to such a degree that a fertilized egg can now survive outside a womb, for anywhere from two to six days. That means: At the very least there is a question for a trial to resolve, about whether conception should now be the standard for fetal viability and thus the point at which states lose the power to outright ban abortion. The state should be allowed to put forward its “experts” that support this claim that conception and viability are now interchangeable concepts in both science and the law.

Not so, rebutted Janet Crepps from the Center for Reproductive Rights, who represented North Dakota’s only abortion clinic in successfully challenging the law in the lower court. “What [the attorneys are] really simply expressing is they really don’t like prior decisions and they’d like the Supreme Court to reconsider them,” Crepps said.

And that is exactly it. The problem is, judging from Tuesday’s arguments, it’s also pretty clear that the judges of the Eighth Circuit don’t like those prior decisions either.

A decision in the case is not expected for several weeks.

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