Analysis Law and Policy

20-Week Abortion Bans: Still Unconstitutional After All These Years

Imani Gandy

With his announcement that he would sign a 20-week abortion ban should one reach his desk, Wisconsin Gov. Scott Walker joins a slate of fervently anti-choice Republican presidential candidates who support a flatly unconstitutional law.

In March, Wisconsin Gov. Scott Walker, who plans to join an increasingly crowded Republican primary for the 2016 presidential nomination, said that he would sign a 20-week abortion ban should one reach his desk and that he would support a similar federal ban. With that announcement, Walker joins a slate of fervently anti-choice Republican candidates—Sen. Rand Paul (KY), Sen. Ted Cruz (TX), former governor of Florida Jeb Bush, former governor of Arkansas Mike Huckabee, retired neurosurgeon Ben Carson, former business executive Carly Fiorina, and Sen. Marco Rubio (FL)—who support a flatly unconstitutional law.

Make no bones about it, 20-week abortion bans are unconstitutional. Full stop. They’ve been unconstitutional since Roe v. Wade legalized abortion in 1973, and they will remain unconstitutional unless one of two things happens: the U.S. Supreme Court either overturns its landmark decision or reverses 40 years’ worth of case law about the importance of fetal viability.

Fetal viability is a crucial benchmark for a pregnant person, legally speaking. Before fetal viability, the point at which a fetus can survive outside the womb, it’s your body, your rules—with some interference from states that make it more difficult for people to access abortion care, of course. (States will be states, after all. They may be forced to let you decide what to do with your own body, but they’ll be damned if they don’t do everything in their power to influence your choice, even by making it impossible for you to exercise it.) But after fetal viability, the rules change. At that point, states have an interest in “potential life” and they get to make the rules. States can lawfully force you to carry an unwanted pregnancy to term unless doing so will kill you or almost kill you.

That’s the central holding of Roe. You have the right to an abortion if the fetus isn’t viable. After viability, however, states can ban abortion, as long as those bans contain a health exception.

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Even though the Court in Roe decided that fetal viability would be the benchmark for the balance between a person’s right to choose and the state’s interest in “potential life,” the Court was silent on when fetal viability occurs. It left that decision up to doctors. (It is widely cited to occur around 23-24 weeks.)

And so it has been for 40 years. This constitutional principle has been repeated over and over, and the Supreme Court and lower federal courts have never strayed from it.

In 1976, for example, in a case called Planned Parenthood v. Danforth, the Court said, “we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility in the term.”

Three years later in Colautti v. Franklin, the Court said it again, but with a bit more specificity: “[N]either the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus.” (Emphasis added.)

In 1989, the decision in Webster v. Reproductive Health Services was even more specific than it had been in Colautti. It said, “the legislature could not give one element such as gestational age, dispositive weight.”

And in 1992, the Court in Planned Parenthood v. Casey reaffirmed the central holding of Roe v. Wade—that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”

In the past 40 years, the Court has never wavered from the fetal viability benchmark.

So what did state legislatures do? They began doing exactly what the Supreme Court said time and again they could not: enacting laws that ban abortion before fetal viability.

In 1996, the Utah legislature banned abortion at 20 weeks and tried to justify it by including in the legislation a statement equating viability with a gestational age of 20 weeks. The Tenth Circuit saw through Utah’s ploy. In Jane L. v. Bangerter, the court ruled that the law was unconstitutional because—you guessed it—it banned pre-viability abortions.

More recently, the Nebraska legislature became the first state to pass the so-called Pain-Capable Unborn Child Protection Act in 2010. And within five years, 14 additional states had passed almost identical laws, with West Virginia passing its 20-week ban less than two months ago.

Plaintiffs have continuously challenged these laws and courts have blocked them.

In Isaacson v. Horne, for example, a district court in Arizona attempted to escape the constitutional prohibition on pre-viability abortion bans by claiming that HB 2036, Arizona’s 20-week ban, wasn’t really a ban, but a strict regulation. The Ninth Circuit didn’t buy it:

“[A] woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is per se unconstitutional.

The parties here agree that no fetus is viable at twenty weeks gestational age. The District Court so recognized, declaring it undisputed that viability usually occurs between twenty-three and twenty-four weeks gestation. Accordingly, Arizona’s ban on abortion from twenty weeks necessarily prohibits pre-viability abortions.

Elsewhere, a lawsuit filed in Georgia resolved in favor of three physicians who challenged the state’s 20-week ban, HB 954. The state court blocked the law because it prohibited pre-viability abortion care.

In McCormack v. Hiedeman, a district court blocked S 1165, Idaho’s 20-week ban, saying it was unconstitutional. Again, the law impermissibly banned pre-viability abortions.

Courts have consistently smacked down legislative attempts to ban abortions at 20 weeks. But states are undeterred by such pedestrian concerns as constitutionality.

This year alone, 12 states have introduced 19 laws banning abortion after 20 weeks: Illinois (HB 3561), Iowa (SF 91), Kentucky (HB 393), Maryland (HB 961, SB 511, and HB 492), Massachusetts (H 1550), New Mexico (HB 390), Ohio (HB 117 and SB 127), Oregon (HB 2388), South Carolina (H 3114, S 28, S 130, and S 25) Virginia (HB 2321), and West Virginia (HB 2568 and HB 2153). But only one—West Virginia’s—has become law.

And it’s not just states that are trying to pass these unconstitutional laws. After failing to bring a federal 20-week abortion ban for a vote back in January of this year, House Republicans are gearing up for another vote on HR 36. This proposal bans abortion after 20 weeks nationwide. It would also be unconstitutional under Roe.

Obviously, when it comes to interfering with the right to choose, that these bans are unconstitutional doesn’t matter to anti-choice lawmakers. The “fetus first” philosophy held dear by so many anti-choicers doesn’t concern itself with the rule of law or silly questions about what is or is not constitutional. It concerns itself with fetuses—first.

News Law and Policy

Anti-Choice Group: End Clinic ‘Bubble Zones’ for Chicago Abortion Patients

Michelle D. Anderson

Chicago officials in October 2009 passed the "bubble zone" ordinance with nearly two-thirds of the city aldermen in support.

An anti-choice group has announced plans to file a lawsuit and launch a public protest over Chicago’s nearly seven-year-old “bubble zone” ordinance for patients seeking care at local abortion clinics.

The Pro-Life Action League, an anti-choice group based in Chicago, announced on its website that its lawyers at the Thomas More Society would file the lawsuit this week.

City officials in October 2009 passed the ordinance with nearly two-thirds of the city aldermen in support. The law makes it illegal to come within eight feet of someone walking toward an abortion clinic once that person is within 50 feet of the entrance, if the person did not give their consent.

Those found violating the ordinance could be fined up to $500.

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Harassment of people seeking abortion care has been well documented. A 2013 survey from the National Abortion Federation found that 92 percent of providers had a patient entering their facility express personal safety concerns.

The ordinance targets people seeking to pass a leaflet or handbill or engaging in “oral protest, education, or counseling with such other person in the public way.” The regulation bans the use of force, threat of force and physical obstruction to intentionally injure, intimidate or interfere any person entering or leaving any hospital, medical clinic or health-care facility.

The Pro-Life Action League lamented on its website that the law makes it difficult for anti-choice sidewalk counselors “to reach abortion-bound mothers.” The group suggested that lawmakers created the ordinance to create confusion and that police have repeatedly violated counselors’ First Amendment rights.

“Chicago police have been misapplying it from Day One, and it’s caused endless problems for our faithful sidewalk counselors,” the group said.

The League said it would protest and hold a press conference outside of the Planned Parenthood clinic in the city’s Old Town neighborhood.

Julie Lynn, a Planned Parenthood of Illinois spokesperson, told Rewire in an email that the health-care provider is preparing for the protest.

“We plan to have volunteer escorts at the health center to make sure all patients have safe access to the entrance,” Lynn said.

The anti-choice group has suggested that its lawsuit would be successful because of a 2014 U.S. Supreme Court decision that ruled a similar law in Massachusetts unconstitutional.

Pam Sutherland, vice president of public policy and education for Planned Parenthood of Illinois, told the Chicago Tribune back then that the health-care provider expected the city’s bubble zone to be challenged following the 2014 decision.

But in an effort to avoid legal challenges, Chicago city officials had based its bubble zone law on a Colorado law that created an eight-foot no-approach zone within 100 feet of all health-care facilities, according to the Tribune. Sidewalk counselor Leila Hill and others challenged that Colorado law, but the U.S. Supreme Court upheld it in 2000.

Roundups Politics

Campaign Week in Review: Tim Kaine Outlines Plan to ‘Make Housing Fair’

Ally Boguhn

“A house is more than just a place to sleep. It's part of the foundation on which a family can build a life,” wrote Sen. Tim Kaine (D-VA). “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Donald Trump made some controversial changes to his campaign staff this week, and Sen. Tim Kaine (D-VA) noted his commitment to better housing policies.

Trump Hires Controversial Conservative Media Figure

Republican presidential nominee Trump made two notable additions to his campaign staff this week, hiring Breitbart News’ Stephen Bannon as CEO and GOP pollster Kellyanne Conway as campaign manager.

“I have known Steve and Kellyanne both for many years. They are extremely capable, highly qualified people who love to win and know how to win,” said Trump in a Wednesday statement announcing the hires. “I believe we’re adding some of the best talents in politics, with the experience and expertise needed to defeat Hillary Clinton in November and continue to share my message and vision to Make America Great Again.”

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Both have been criticized as being divisive figures.

Conway, for example, previously advised then-client Todd Akin to wait out the backlash after his notorious “legitimate rape” comments, comparing the controversy to “the Waco with David Koresh situation where they’re trying to smoke him out with the SWAT teams.” According to the Southern Poverty Law Center (SPLC), Conway is also “often cited by anti-immigrant and anti-Muslim organizations such as the think tank Center for Security Policy and NumbersUSA.”

Under Bannon’s leadership, “mainstream conservative website” Breitbart.com changed “into a cesspool of the alt-right,” suggested the publication’s former editor at large, Ben Shapiro, in a piece for the Washington Post‘s PostEverything. “It’s a movement shot through with racism and anti-Semitism.”

Speaking with ABC News this week, Kurt Bardella, who also previously worked with Bannon at Breitbart, alleged that Bannon had exhibited “nationalism and hatred for immigrants, people coming into this country to try to get a better life for themselves” during editorial calls.

“If anyone sat there and listened to that call, you’d think that you were attending a white supremacist rally,” said Bardella.

Trump’s new hire drew heated criticism from the Clinton campaign in a Wednesday press call. “The Breitbart organization has been known to defend white supremacists,” said Robby Mook, Clinton’s campaign manager. After pointing to an analysis from the SPLC linking Breitbart to the extremist alt-right movement, Mook listed a number of other controversial positions pushed by the site.

“Breitbart has compared the work of Planned Parenthood to the Holocaust. They’ve also repeatedly used anti-LGBT slurs in their coverage. And finally, like Trump himself, Breitbart and Bannon have frequently trafficked in all sorts of deranged conspiracy theories from touting that President Obama was not born in America to claiming that the Obama Administration was ‘importing more hating Muslims.’”

“It’s clear that [Trump’s] divisive, erratic, and dangerous rhetoric simply represents who he really is,” continued Mook.

Kaine Outlines Plan to “Make Housing Fair”

Clinton’s vice presidential nominee Kaine wrote an essay for CNN late last week explaining how the Clinton-Kaine ticket can “make housing fair” in the United States.

“A house is more than just a place to sleep. It’s part of the foundation on which a family can build a life,” wrote Kaine. “Where you live determines the jobs you can find, the schools your children can attend, the air you breathe and the opportunities you have. And when you are blocked from living where you want, it cuts to the core of who you are.”

Kaine shared the story of Lorraine, a young Black woman who had experienced housing discrimination, whom Kaine had represented pro bono just after completing law school.

“This is one issue that shows the essential role government can play in creating a fairer society. Sen. Ed Brooke, an African-American Republican from Massachusetts, and Sen. Walter Mondale, a white Democrat from Minnesota, came together to draft the Fair Housing Act, which protects people from discrimination in the housing market,” noted Kaine, pointing to the 1968 law.

“Today, more action is still needed. That’s why Hillary Clinton and I have a bold, progressive plan to fight housing inequities across Americaespecially in communities that have been left out or left behind,” Kaine continued.

The Virginia senator outlined some of the key related components of Clinton’s “Breaking Every Barrier Agenda,” including an initiative to offer $10,000 in down payment assistance to new homebuyers that earn less than the median income in a given area, and plans to “bolster resources to enforce Fair Housing laws and fight housing discrimination in all its forms.”

The need for fair and affordable housing is a pressing issue for people throughout the country.

“It is estimated that each year more than four million acts of [housing] discrimination occur in the rental market alone,” found a 2015 analysis by the National Fair Housing Alliance.

No county in the United States has enough affordable housing to accommodate the needs of those with low incomes, according to a 2015 report released by the Urban Institute. “Since 2000, rents have risen while the number of renters who need low-priced housing has increased,” explained the report. “Nationwide, only 28 adequate and affordable units are available for every 100 renter households with incomes at or below 30 percent of the area median income.”

What Else We’re Reading

CBS News’ Will Rahn penned a primer explaining Trump campaign CEO Bannon’s relationship to the alt-right.

White supremacists and the alt-right “rejoice[d]” after Trump hired Bannon, reported Betsy Woodruff and Gideon Resnick for the Daily Beast.

Clinton published an essay in Teen Vogue this week encouraging young people to fight for what they care about, learn from those with whom they disagree, and get out the vote.

“In calling for ‘extreme vetting’ of foreigners entering the United States, Republican presidential nominee Donald Trump suggested a return to a 1950s-era immigration standard—since abandoned—that barred entry to people based on their political beliefs,” explained USA Today.

Trump wants to cut a visa program “his own companies have used … to bring in hundreds of foreign workers, including fashion models for his modeling agency who need exhibit no special skills,” according to a report by the New York Times.

A Koch-backed group “has unleashed an aggressive campaign to kill a ballot measure in South Dakota that would require Koch-affiliated groups and others like them to reveal their donors’ identities.”

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