Dissenting in Gonzales v. Carhart, the 2007 case that upheld a federal ban on "partial birth" abortion, Justice Ruth Bader Ginsburg charged that the majority "refuses to take [Planned Parenthood v.] Casey ... seriously." This inclination, not surprisingly, has filtered down to the lower federal courts as well. Two recent cases conspicuously refuse to take a woman's reproductive rights seriously, and indeed one judge failed to apply Casey at all.
The first recent decision, by the Eighth Circuit Court of Appeals, upheld a South Dakota statute that requires doctors to inform women seeking abortions that obtaining one will lead to an increased risk of depression and suicide. The law, which interferes with the doctor-patient relationship and forces doctors to lend the weight of their authority to assertions not supported by scientific evidence, should be considered an "undue burden" on a woman's right to choose and hence invalid under Casey. As the dissenters point out, "In order to be constitutional an informed consent requirement must be truthful, non misleading, and relevant." But in fact, "the record clearly demonstrates ... that suicide is not a known medical risk of abortion." Putting this requirement on doctors violates not only a woman's right to privacy but the First Amendment.
While I certainly would have joined with the dissenters, it must be said that the Eighth Circuit opinion reflects crucial flaws in the existing Supreme Court precedent. As Casey applied it, the "undue burden" standard makes it very difficult to demonstrate that anything that still permits women who navigate arbitrary obstacles to obtain an abortion is unconstitutional. This problem was compounded by Justice Anthony Kennedy's infamous majority opinion in Gonzales v. Carhart, which accepted a state's justification for a ban on dilation-and-extraction (i.e., "partial birth") abortions but "[found] no reliable data to measure the phenomenon." In other words, the Court ruled on an abortion restriction without regard to its effect on women's health.
A recent district court opinion by Judge James Teilborg upholding an Arizona law that bans abortions after 20 weeks, however, doesn't just flout Casey; it violates it outright. While Casey is an unnecessarily vague opinion that leaves too much discretion in the hands of lower-court judges, on the issue of abortion before fetal viability, it is clear. "Before viability," held the plurality in Casey, "the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure." Given that fetal viability does not start before approximately the 24th week of pregnancy and that the Arizona law constitutes an outright ban on some pre-viabilty abortions, the requirements of Casey are unambiguous. The Arizona law is plainly unconstitutional, and district court judges have to apply Supreme Court precedents.
What possible logic could permit Arizona to ban abortions Casey specifically permits? As Salon's Irin Carmon explains, in a transparent but of sophistry, Teilborg asserts that the law "regulates" rather than "bans" abortions after the 20th week of pregnancy:
Having considering H.B. 2036 in detail, the Court finds this statement from Casey inapposite because H.B. 2036 does not prohibit all abortions after 20 weeks gestational age. Rather, H.B. 2036 regulates abortions that take place after 20 weeks gestational age.
Teilborg's argument here is transparently wrong. It's like saying that the state of Arizona doesn't ban murder because it's not illegal to kill someone in self-defense. It's true that the Arizona law has an exception for medical emergencies, but these exceptions are required for post-viability abortions as well. Arizona has clearly banned, and not merely "regulated," elective pre-viability abortions, and Casey simply does not permit Teilborg to reach this conclusion.
As Carmon points out, Teilborg's opinion does have something in common with the Eighth Circuit's opinion: It relies on anti-abortion junk science. In this case, Teilborg uncritically cited assertions that fetuses can feel pain prior to the 24th week of pregnancy, arguments that are not supported by the data. Even if there was real evidence supporting these claims, Teilborg overstepped his authority by upholding a law that the Supreme Court has clearly held impressible. Teilborg's tipping of his hand at oral arguments—lecturing the challengers to the law about an alleged lack of compassion for the "unborn"—leaves little doubt that his opinion is pure politics.
One of these cases reflects the dilution of Casey, and the other reflects a judge who is simply ignoring the applicable law. But both of them threaten the reproductive freedom of women and should be overturned by higher courts. Whether they ultimately will be is a question that does not instill a great deal of optimism.
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