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Will The Latest Abortion Laws Hold Up In Court?

Jul 15, 2013
Originally published on July 15, 2013 2:02 pm

Slate legal affairs editor Emily Bazelon writes that Texas joins 11 other states where abortions are banned at some point in the second trimester of pregnancy such as after 20 weeks, but it’s unlikely that those kinds of laws will pass muster at the Supreme Court.

It’s also unclear where courts will come down on new laws in 12 states, including Texas, that restrict access to abortion-inducing medication.

And 26 states now have laws that increase regulations on abortion clinics, such as requiring providers to have hospital admitting privileges.

“As significant as these new laws are, no state has yet succeeded in winning the race to be the first without a clinic. The courts still stand between the legislature and the patient. And for the most part, they are on her side” Bazelon told Here & Now.


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Emily Bazelon/Slate “After all, while the wave of legislation comes out of a deep and abiding rift, a lot of it is also political theater—of use to both sides. Let’s go from least to most plausible—from the laws that are largely symbolic to the ones that keep pro-choice lawyers up at night.”

National Journal “The antiabortion movement’s success, however, stems in part from activists making the case that tougher clinic regulation is a mainstream cause to improve women’s safety. In Texas, the new rules are wrapped around a ban on abortions after 20 weeks, a limit that most Americans support, according to recent polling.”

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The Texas Senate has sent that controversial abortion bill to Governor Rick Perry's desk for a signature. State lawmakers approved it in a contentious session Friday night. On CNN, Perry defended the bill, which includes a ban on abortion after five months of pregnancy.

GOVERNOR RICK PERRY: Most people I think in this country and in Texas certainly believe that six months is too late to be deciding whether or not these babies should be aborted or not, and we put the limit at five months in this bill.

HOBSON: Including Texas, 12 states now have similar bans on abortion late in the second trimester of pregnancy. But will these new laws stand up in court? For answers, let's bring in Emily Bazelon, legal affairs editor for Slate. And Emily, what is the record so far in the courts on these kinds of laws?

EMILY BAZELON: It's very mixed. You know, the states that are going in and banning first-trimester, early abortions, those are easy for the courts to strike down because they're so clearly at odds with Roe versus Wade. The 20-week bans that Governor Perry was talking about, one of those, actually an 18-week ban in Arizona, has also been struck down.

On the other hand, that's the only federal appeals court ruling we have in one of these 20-week-ban laws. So it's possible the courts will be dividing on that issue.

HOBSON: Is 20 week a magic number?

BAZELON: No, it's not. You know, when you look at Planned Parenthood versus Casey, which is the big Supreme Court decision in 1992 that upheld Roe versus Wade, the justices said that throughout a pregnancy, before a fetus is viable, states can regulate with - as long as they don't pose what's called on an undue burden on a woman's right to have an abortion. And that's a subjective term.

So we see some play in the joints there for the lower courts.

HOBSON: And what about the targeted restrictions on clinics where abortions are performed, like forcing clinics to upgrade to surgical centers? How have those kinds of things fared in the courts?

BAZELON: Again it's a mixed record. Sometimes courts think that those laws are really just an excuse for shutting down abortion clinics. And then they say OK, well, that imposes too great a burden on women, and we're not going to let them stand. And then on the other hand, there's a justification for those rules, that they are supposed to be protecting women's health and that they come under the usual umbrella of states regulating public health. So then that's an argument for allowing them to go forward.

HOBSON: What about these abortion-inducing pills? The Texas bill requires women to take those pills in doctors' offices. North Carolina wants to do the same thing. This is a fight that's obviously just beginning. Where might the courts come down on these so-called medication abortions?

BAZELON: Right, this is a big issue because more and more women are trying to take a pill early in an abortion that would end the pregnancy there. And there's an argument that physicians' assistants and nurses are competent to oversee that medication. So nine states have said no, a doctor has to be in the room, and so far that law has been blocked in Wisconsin. So we have seen a court strike it down there.

And the other laws are kind of out there. We just don't know yet because this is a new tactic.

HOBSON: It seems like these laws are getting rather complicated, and, you know, if your goal is to limit the number of abortions, to go through all these little pieces of the ambulatory centers and all that, have the anti-abortion activists been trying to figure out a way to get this stuff through and make it stand up in court?

BAZELON: Yes, there are organizations, abortion opponents, who are drafting model bills that they think have the best chance of being upheld. They're really interested in this argument that this is all about protecting women's health and try and get the courts to go for that. They don't know whether it's going to work or not.

You know, this is kind of a new breed of law, and I think what we're seeing is Republican state houses, you know, since the 2010 elections the Republicans are in control of more and more state legislatures, and they're getting as creative as they can with these laws and going as far as they think they can, and the hope is, well, some appeals court or maybe the Supreme Court, maybe they'll uphold one of these, and we'll just kind of keep throwing different ideas at the wall and see what sticks.

HOBSON: And are states learning from each other?

BAZELON: Absolutely. They see model bills drafted. They see what one passes. And then I think there's also some sense of, like, OK, if you're really opposed to abortion, and you see, you know, Alabama or Mississippi pass a law, well, why not Texas. This new law that passed last week in Texas kind of rolls up all the big new strategies that are out there.

HOBSON: How important is public opinion in all of this? I mean, the court is the court, the court gets to decide what stands and what doesn't, but does public opinion matter?

BAZELON: That's such a good question. You know, the court is not supposed to directly respond to public opinion. On the other hand, Justice Kennedy is really the vote that's in play on the court. And we know from previous decisions of his that he does care in a general sense about what people think.

So I - it's not irrelevant, even though it doesn't directly control the outcome in the courts.

HOBSON: Bottom line, Emily, so far every state has at least one clinic that performs abortions. Do you see a day soon where that might change as a result of all this - all these laws?

BAZELON: I think it's really possible. You know, what we have is a race among certain states - Alabama, Mississippi, South Dakota, North Dakota - to be the first one without any clinic. It is becoming hugely expensive and hugely burdensome for abortion providers to keep these clinics open. And this is an important symbolic fight. To have no clinic in a state really belies the whole promise of Roe versus Wade, that abortion will be accessible to women.

But as you see these laws pile on, one on top of the other, you wonder how long the clinics can hold out.

HOBSON: Emily Bazelon, legal affairs editor for Slate. Thank you so much.

BAZELON: Thanks so much for having me.

HOBSON: And still to come, NPR's Charlie Mahtesian with the week ahead in politics.


Also a note about something ALL THINGS CONSIDERED is considering for later today. When is a debut novel not a debut? It's when you are J.K. Rowling, writing under a pseudonym. That on ALL THINGS CONSIDERED. Back in one minute, HERE AND NOW. Transcript provided by NPR, Copyright NPR.