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As Long as We Remember...

May 20, 2019

Challenge Accepted

Jason Miller

The state of Alabama this week passed one of the most restrictive abortion laws in the United States. The governor of Louisiana announced soon after that he plans to sign a similar bill in his state if it reaches his desk.


Abortion is an issue that has had entrenched sides pitted in a battle for attrition since the Roe V. Wade decision in 1973. The cold war on the abortion issue has been simmering to a boil for some time. This may be the year that the pot boils over.


In January New York enacted many strong new legal protections for rights laid out in Roe v. Wade. It was passed in the aftermath of Brent Kavanaugh's confirmation survival to become a Supreme Court justice.


Justice Kavanaugh critics became a frenzied mob saying that it was up to the states to thwart a Supreme Court majority that they deemed a threat to Roe V. Wade. The state of New York answered in kind to the prochoice advocates by adding provisions to its own state law including a provision permitting late-term abortions with little to no restrictions.


Thus the gauntlet was thrown and Alabama was the state that accepted New York's challenge. This is a legal attempt to settle the abortion issue in the United States by both sides once and for all at the state level. Now states will be locked in a legal battle as their citizen’s turn away from Congress and the Office of the President and turn to the Supreme Court. Prolife and prochoice voices will have their day in court, but I doubt that Roe v. Wade is revisited.


That case was a precursor to Planned Parenthood v. Casey in 1992. The Casey decision is what put the terms “trimester” and “viability” into our legal lexicon. The latest “health science” was introduced into the courts. This science was the foundation upon which Justice Sandra Day O'Conner wrote the decision in Casey which reaffirmed Roe v. Wade despite an onslaught of political pressure to do otherwise.


Advances in general medical science, women’s health, and pediatric medicine have been made since 1992. Prolife advocates have been pushing to have the Casey decision revisited for more than a decade. Prochoice advocates have successfully thwarted any effort to do so by championing the status quo in the Casey decision.


That is, until the state of New York; decided to take a purple-lighted victory lap in New York City after passing the law calling on other states to follow it. That move offered an opportunity for prolife-leaning states to answer New York's law with their own state laws based on the Casey decision.


Planned Parenthood v. Casey asked three questions.


1.    Could a Pennsylvania law mandate a one day waiting period as part of informed consent for a women requesting an abortion?

2.    Was there was a legal burden to notify husbands of an abortion prior to the procedure if married?

3.    If in the case of minors, would mandated parental permission be lawful without violating a women’s right to an abortion as guaranteed by Roe v. Wade?


The Supreme Court answered in a bitter 5-to-4 decision. The court reaffirmed the Roe decision, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a legal standard to determine the validity of legislation that restricted abortions. The new standard required that if a state abortion regulation has the purpose or effect of imposing an "undue burden," the state is in violation of the Roe v. Wade decision.


The Casey decision defined an undue burden as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."


Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. In an even more rarely seen action by the justices, the opinion for the court was crafted and authored by three justices: O'Connor, Anthony Kennedy, and David Souter.


The governor of Alabama understands that the abortion bill signed into law this past week is in violation of the "undue burden" test in the Casey decision. The New York legislature knew that New York State's late term abortion provisions violate the "fetus viability" test. The abortion challenge was made by New York and has now been accepted by Alabama. Sorting out the issues with both state laws will be the task of the Chief Justice John Robert’s court.


Curiosity makes one wonder if this is what either side of the abortion debate really wanted. There is no appeal after the gavel falls in this scenario.


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