State Legislatures Hopeful on Abortion Bans
by TexasGOPVote on December 29, 2010 at 9:29 AM
Until the 2007 Supreme Court case of Gonzales v. Carhart, State Legislatures hoping to place restrictions on abortion access faced an uphill battle. A long line of Supreme Court Decisions since Roe v. Wade signaled that attempts to restrict access were violative of a woman's right to privacy. The Washington Post ran an article on this topic yesterday.
In 2007 new Court, with Justice Samuel Alito and Chief Justice John G. Roberts, may have changed the outlook for pro-life advocates. In 2007 the Court held that the government has a "legitimate and substantial interest in protecting fetal life." According to the WaPo article this marks a shift in the Court's jurisprudence. The Court in 2000, with O'Connor writing for the majority, held in Planned Parenthood v. Casey, that any law banning partial birth abortion was violative of Roe if the law did not include "an exemption for allowing the procedure when the mother's health was threatened." However, in 2007 the Court held, with Justice Kennedy writing for the majority, that since other procedures for late term abortions exist, there is never a medical need for a partial birth abortion.
According to the article, pro-life advocates in several states have enacted legislation aimed at futhering restrictions on abortion. Using Gonzales v. Carhart as precedent, Nebraska's Legislature has passed a law banning procedures after 20 weeks of pregnancy. Mike Flood, Speaker of Nebraska's legislature, based the law on studies that show that a fetus may experience pain after 20 weeks of pregnancy. Although the studies are not 100% conclusive, Flood is relying on a portion of Justice Kennedy's 2007 decision which states that "the court has given state and federal legislature wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Put another way, although there have been no studies which have definitively concluded that a fetus experiences pain after 20 weeks, the fact that there is still an open question on the matter means that Courts should defer to state legislatures and congress on the matter.
The Washington Post says that the 2007 decision "has emboldened state legislatures to pass an increasing number and variety of restrictions in hopes that a changed court will uphold them." While only time will tell if laws such as Nebraska's will pass constitutional muster, pro-life advocates can hold out hope with Justices Thomas, Scalia, Alito, Kennedy, and Chief Justice Roberts on the bench.