United States District Court Judge B. Lynn Winmill’s ruled earlier this month that Idaho’s so-called “fetal pain” bill and a range of other restrictions on access to safe abortion care are unconstitutional, a win for women and confirmation that pre-viability abortion bans will have a difficult time withstanding constitutional scrutiny. Yet anti-choice activists are applauding the decision loudly, and their enthusiasm underscores the longer game aimed at overturning Roe v. Wade and potentially banning abortion for good.
Anti-choicers have been waiting years to see a successful challenge to a 20-week post-conception ban based on the disproven claim that a fetus can feel pain at that point in its development. Nebraska’s groundbreaking bill, carefully crafted by the National Right to Life Committee, was proposed for the two-fold purpose of creating a clean piece of legislation that would not be marred by amendments (Nebraska, with its unicameral legislature and heavily anti-choice majority offered a unique automatic passage situation for the bill), and because it is home to Dr. Leroy Carhart, who until recently provided late abortions for women in need in the state, and who, anti-choicers assumed, would almost certainly challenge ban. This was the lesson from the battle over “partial-birth abortions,” which also started in Nebraska, and anti-choice activists had every reason to think the fight over “fetal pain” bans would play out the same way.
So far it hasn’t. Rather than challenge Nebraska’s 20-week ban, Carhart stopped performing abortions after 20-weeks post-fertilization in that state, a move that no doubt thrilled and frustrated abortion opponents. Since 2010, eight states have enacted the 20-week post fertilization ban, but only three challenges have emerged—one in Georgia filed in state rather than federal court at the end of 2012, another in Arizona, where a federal judge upheld the law in July 2012, and this third law now struck down in Idaho.
Judge Winmill called the law an unconstitutional banning of abortion prior to viability and chastised lawmakers for overstepping their roles in trying to replace the scientific medical concept of viability with a new construction of their own creation. Yet abortion opponents are heralding the decision, believing that the ability to appeal opens the path to the Supreme Court that they have been awaiting.
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“We have always recognized that it will take a decision by the Supreme Court to allow expanded protection of unborn children capable of feeling pain, and there are strong indications that five of the sitting Justices would look with sympathy on a law providing such protection,” Mary Spaulding Balch, J.D., director of state legislation for the National Right to Life Committee said in an email statement. “The next step will be an appeal to the Ninth Circuit Court of Appeals, followed, after its decision, by a request to the U.S. Supreme Court to hear the case.”
Are there five “sympathetic” justices, as Spaulding Balch believes? Maybe. But to get to the Supreme Court, at least via this ruling, is still a long shot. As even Spaulding Balch suggests, the Ninth Circuit is not inclined to overturn Judge Winmill’s ruling, and despite the pledge to appeal, that doesn’t mean that the Supreme Court will necessarily hear the case.
To begin with, when the Ninth Circuit had a preliminary look at this issue during the review of McCormack’s preliminary injunction the result was an opinion that broadly and vigorously re-affirmed the privacy rights of pregnant women. Presuming the Ninth Circuit remains consistent with its reasoning there’s no indication the court would overturn Judge Winnmill’s decision, which would mean another loss for the anti-choice groups. Second, absent a conflicting appellate ruling from another federal jurisdiction, there’s no good reason for the Roberts Court to jump in and review these bans at this time. Federal courts need actual “controversies” to decide, especially at the appellate level. Right now there are no other federal 20-week bans in the judicial pipeline. The Arizona challenge is a different law, but in the same jurisdiction. While we don’t know how the Ninth Circuit will rule, the differences in the Arizona law and the Idaho law make it difficult to craft a common, reviewable issue for the Court. And just because National Right To Life disagrees with a decision does not make it a “controversy” for purposes of federal appellate review. As for the challenge in Georgia, that needs to work its way all the way through the state court system before a federal court would intervene.
It is possible that an activist Roberts Court would reach down and grab onto a case to review, but with approximately one-to-two percent of all requests for review granted by the Supreme Court, such a move would be unusual. The point is, we are still a ways off from Supreme Court review. It may come, we just can’t be certain when.
If an eventual contrary federal appellate court ruling happens, say from the Fifth Circuit Court of Appeals in the case of successful passage of a 20-week ban in Texas, the real question becomes which side has the five to win? On the one hand, Justice Anthony Kennedy has shown inclination to want a chance to consider other factors when it comes to the value of the potential life of a fetus versus the existing life and rights of women, at least when it came to the so-called “partial birth” abortion bans. On the other, with his time on the court drawing to a close, is being the vote that overturned Roe the legacy he wants as he enters retirement?
Should the court decide that anti-choice physicians’ claims that a fetus feels pain aren’t strong enough (or, frankly, even legitimate in the first place), Roe will have its strongest affirmation yet. If they rule in favor of so-called fetal pain, then a new set of bans will begin with anti-choice politician citing studies from “pro-life physicians” saying that pain can allegedly be felt earlier and earlier until abortions will essentially be banned de facto.
Before this can happen, however, a case needs to make it to the Supreme Court itself. Although the Idaho ruling may be a step in that direction, it is definitely not the giant leap that anti-choice activists believe it is.
Robin Marty and Jessica Mason Pieklo are the co-authors of Crow After Roe: How “Separate But Equal” Has Become the New Standard In Women’s Health And How We Can Change That, by IG Publishing, which will be on the shelves April 16, 2013.