20-Week Abortion Bans and the Pathway to the Supreme Court

Much has been written about the politics behind 20-week abortion laws—especially the false claims that they are designed to protect women—but so far, there has been relatively scant coverage of the anti-choice litigation strategy in relation to these bans.

On Monday, the Supreme Court refused to go along with Virginia Attorney General Ken Cuccinelli's crusade to have the state's "crimes against nature" law reinstated. Jeff Kubina / flickr

In the “war on women,” 20-week abortion bans have become a rallying point for both pro- and anti-choice camps alike. While Texas’ recently-enacted law, which among other things bans abortions after 20 weeks, may have garnered most of the media attention in recent weeks, so far 13 states have passed similar bans, and three states have passed even more restrictive laws, prohibiting abortions as early as six weeks’ gestation. Nevertheless, these 20-week abortion bans have been gaining traction.

Much has been written about the politics behind these laws—especially the false claims that they are designed to protect women—but so far, there has been relatively little coverage of the anti-choice litigation strategy in relation to these bans. For instance, how do anti-choice campaigners intend to persuade the Supreme Court to reverse Roe v. Wade? Of all the various state anti-abortion laws, which one is most likely to be used as the test case at the national level?

The Supreme Court won’t review its long-standing abortion jurisprudence unless it has to. Given the controversial nature of abortion, a simple appeal from a state to clarify abortion law probably won’t prompt the Court to act. (The Oklahoma supreme court recently tried this tactic when it struck down Oklahoma’s ultrasound law and practically begged the U.S. Supreme Court to hear the case; the Court didn’t bite.) What will prompt the Supreme Court to act is a conflict between the laws that apply in one circuit and the laws that apply in another.

“Circuit” is a fancy legal term for a group of states. The country is split into eleven circuits, plus the D.C. Circuit, with one federal appeals court in charge of setting the law for each of the circuits. If one circuit court sets law that is different than the law that applies in another circuit, then a legal mess—or, as it is sometimes called, a “circuit split”—results. And since the Supreme Court likes to have laws that bind the entire country, it will intervene to resolve the circuit split.

The push for 20-week abortion bans is part of a national strategy implemented by anti-choice advocates to create exactly the sort of legal mess that will force the Supreme Court to reconsider Roe v. Wade and Planned Parenthood v. Casey, and to revisit the viability standard that has served as the constitutional foundation for abortion rights for 40 years.

An analysis by Rewire suggests that the strategy deployed by anti-choicers is deeply subversive. It capitalizes on personal feelings and anti-abortion hostilities by enticing judges and legislatures to abandon empirical science in favor of biased, agenda-driven science or, as it is sometimes called, “junk science.” Proponents of junk science, which has become a cottage industry among anti-abortion advocates, confuse the issue of fetal viability, invent claims about fetuses feeling pain (or masturbating in utero), and call into question established medical standards.

The strategy is a smart one, to be sure. Anti-choicers understand that once junk science has been incorporated into legislation, courts are not inclined to question those scientific findings—no matter how agenda-driven they are—and will simply apply the law to those “facts.” In cases when junk science is presented to a court, a judge (or justice) hostile to abortion rights requires only the flimsiest reasoning to ground their legal opinion in fact, even if those “facts” are anything but factual.

It is hard to fathom that any court would find these pernicious bans constitutional. After all, the Constitution guarantees a right to choose abortion up until the point of fetal viability, which occurs well after 20 weeks’ gestation. Nevertheless, anti-choice advocates are alarmingly optimistic about their chances in making these bans stick—at least, some are.

The 20-week abortion ban enthusiasts are confident that the key to a reversal of Roe v. Wade rests with Justice Anthony Kennedy. In his majority opinion in Gonzales v. Carhart, Kennedy made it clear that he finds certain abortion procedures to be terrible, and that he is very concerned about the mental state of women who would dare to seek them. What about the bonds of love between mother and child, he wonders in his opinion. What if women come to regret their choice to abort the “infant life they once created and sustained”?

Since Anthony Kennedy’s 2003 opinion in Gonzales, anti-choice litigators and advocates have smartly tailored their litigation strategy to suit Kennedy’s sensibilities. Drawing upon the junk science that anti-abortion advocates like David Reardon and frequent co-authors J.M. Thorp and Priscilla K. Coleman have been developing for decades, anti-choice advocates are weaving junk science into the very fabric of state-level 20-week abortion bans.

In Arizona, for example, the legislature relied on research debunked by the Guttmacher Institute to fashion its bill (HB 2036) banning abortion at 20 weeks’ gestation. According to that debunked research, abortion causes serious short- and long-term physical and psychological maladies, including breast cancer and intense guilt. Texas’ 20-week ban (HB 2) includes medically disproven statements about fetal pain. And in HR 1797, the 20-week abortion ban passed by the House of Representatives in June, a section detailing junk science about fetal pain goes on for five pages.

By the time legislation reaches the litigation stage, the junk science is practically irrefutable, even though it is wrong. Still, anti-choice lawyers submit documents containing even more junk science to complement legal arguments that are as untenable as they are nonsensical, as they attempt to convince courts to uphold flatly unconstitutional abortion restrictions.

The tactic is working, too. A district court in Arizona was convinced to uphold a 20-week abortion ban. In Isaacson v. Horne, the district court flat-out ignored Casey’s clear proscription against banning pre-viability abortions, and contorted logic and the law to rule that HB 2036 doesn’t ban abortion, it merely regulates abortion.

Relying on disproven claims that abortions after 20 weeks are not medically necessary since, according to junk science, most fetal anomalies can be detected prior to 20 weeks’ gestation, the district court ruled that HB 2036 simply “prompts a few women, who are considering abortion as an option, to make the ultimate decision earlier than they might otherwise have made it.” “It does not prohibit any woman from making the ultimate decision to terminate her pregnancy,” the district court declared.

This is not true, of course, and the Ninth Circuit rightfully reversed the district court, writing:

The parties here agree that no fetus is viable at twenty weeks gestational age. The District Court so recognized, declaring it undisputed that viability usually occurs between twenty-three and twenty-four weeks gestation. Accordingly, Arizona’s ban on abortion from twenty weeks necessarily prohibits pre-viability abortions.

While the Ninth Circuit was not persuaded by the junk science anti-choice advocates injected into the 20-week abortion ban litigation, there is no guarantee that the Fifth Circuit will be similarly unpersuaded once the Texas bill makes its way to the appeals court. Certainly, it is difficult to imagine that a court of appeal could ever find these bans constitutional, especially in light of decisions out of the Ninth and Tenth Circuits striking down such bills in clear, incontrovertible terms.

Still, the Fifth Circuit Court of Appeal, notorious for being one of the most conservative appeals courts in the country and extremely hostile to reproductive rights, might do exactly that when it eventually considers HB 2—as well as the junk science regarding fetal pain and “rape kits as abortion” Texas legislators relied on to ram the bill through the legislature. The Fifth Circuit may engage in the same mental gymnastics that led the Arizona district court to uphold HB 2036. And if it does, the Supreme Court will have to step in to resolve the legal mess.

What happens after that is anyone’s guess. Some anti-choice advocates fear that the concerted push against abortion rights will result in an affirmation of a woman’s constitutional right to choose. Others in the anti-choice camp are certain that Justice Kennedy, like the district court judge in Arizona, will be persuaded by junk science.

Pro-choice advocates share this concern, and recognize that Kennedy’s palpable discomfort with the process of abortion itself, as expressed at length in his opinion in Gonzales, might prompt him to join the conservative wing of the Court in undoing 40 years of constitutional abortion jurisprudence.

Both sides of the abortion debate likely can agree on one thing: Whatever the Supreme Court does next may end this battle for future generations.