OPINION:
For all the hype surrounding the Texas abortion case soon to be heard by the U.S. Supreme Court, two quiet “No” votes from the justices last month indicate that things are more complex than typically reported.
On January 19, the U.S. Supreme Court refused to hear an appeal from Arkansas state officials seeking to defend the state’s prohibition on abortion after 12 weeks of pregnancy. (Beck v. Edwards, No. 15-448). On January 25, the Court refused to hear an appeal from North Dakota state officials seeking to defend a similar prohibition on abortion after 6 weeks of pregnancy (Stenehjem v. MKB Management Corp., No. 15-627). (These followed the justices’ refusal to hear Arizona’s defense of its 20-week limit on abortion in January 2014 (Horne v. Isaacson).
The Court’s refusal to hear these cases provides important data about the prospects of future prohibitions on abortion in the first three months of pregnancy, and why legislators seeking to pass pro-life laws this Spring should consider health and safety standards instead, given the record of the current Court, and the loss of Justice Scalia’s anti-Roe vote.
In the last abortion case the Supreme Court decided, Gonzales v. Carhart, the Court upheld the federal ban on partial-birth abortion, but — in an action that has largely been overlooked — also gave more deference to the states to pass regulations of abortion that protect women and unborn children. In the aftermath of that 2007 decision, bills prohibiting abortion after or within the first trimester of pregnancy were introduced in several states, and passed in North Dakota and Arkansas.
Abortion clinics immediately sued, and federal courts imposed injunctions against the Arkansas and North Dakota laws before they ever went into effect, and the federal district courts eventually invalidated the laws, decisions which were affirmed by the federal appeals courts before the state officials took the laws to the Supreme Court last year. The attorneys for Arkansas and North Dakota should be commended for their defense of state authority to constitutionally protect human beings at the earliest stages of life.
Beyond the bare essentials of the two laws, there were a few other factors that might have raised the prospect of Supreme Court review.
In its decision affirming the invalidity of the North Dakota law, the federal appeals court went farther than simply invalidating the law. A panel of three federal judges took the highly unusual step of issuing a special opinion which criticized the Supreme Court’s viability rule adopted in Roe v. Wade and encouraged the Supreme Court to reexamine it. In addition, the attorneys for the State of North Dakota sought to create a strong factual record about the humanity of the unborn child. Yet, even those distinctions failed to spark one Supreme Court justice’s interest in reviewing the North Dakota prohibition.
We now have clear and repeated evidence that there aren’t four justices on the Court — the minimum number needed to hear any case — who will hear a test case involving a limit on first-trimester abortions.
In addition, no justice filed a dissent from the Court’s refusal to hear these cases. Though individual justices can file dissents from the whole Court’s refusal to hear a case, no justice did that in either the North Dakota or Arkansas case.
In the wake of the Court’s decision not to hear these cases, some states may still persist with legislation to prohibit first-trimester abortions in 2016-2017. However, they need to carefully weigh the obvious costs versus the possible benefits.
When the Supreme Court refuses to hear a lower court’s invalidation of a state statute, the law never goes into effect. The state has to pay the winning side’s attorneys’ fees, which may be hundreds of thousands of tax dollars, in addition to the costs and expenses expended by the state in defending the law.
Certainly, some legislators might consider such efforts educational for the public, but other legislation that might more readily go into effect can have a positive practical impact.
In any case, the new decisions by the Supreme Court this month in Beck and Stenehjem are clear evidence that first trimester prohibitions by other states would meet the same fate with this Court, without sparking a test case and without ever going into effect. Instead, it’s possible to pass life-protecting legislation that is supported by the majority of Americans. A recent Marist poll found that more than 80 percent of Americans support limits on abortion (including 66 percent of those who identify as “pro-choice”).
Instead of first trimester abortion prohibitions, state legislators could protect human life and women’s health with popular health and safety standards. In the run-up to the justices hearing the Texas clinic regulations case in March and their decision by the end of June (Whole Women’s Health v. Hellerstedt), public opposition to substandard providers and clinics could be important.
• Clarke D. Forsythe is senior counsel at Americans United for Life and the author of “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter Books 2013).
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