Monday, November 3, 2008
Just last week, I wrote about a challenge to an Oklahoma abortion law. Abortion remains in the forefront this week in two states.
Richmond Medical Center v. Herring - In 2003, the State of Virginia passed a law called the "Partial Birth Infanticide Act." Professor Sherry Colb of Findlaw explains that at the time the law was passed, Steinberg v. Carhart had been decided, so "the prospects for such laws . . . were not good." The law was enjoined, and the Fourth Circuit upheld the injunction. Virginia filed a petition for certiorari. However, after the Court's decision in Gonzalez v. Carhart, the Court directed the Fourth Circuit to reconsider the case.
A panel heard the case in May 2008. (Its decision can be found here.) Two of the judges again held that the law was unconstitutional. The primary reason was that the law placed "an undue burden on a woman's constitutional right to choose an abortion in the second trimester, because the Act effectively prohibits the standard D&E procedure. The panel majority distinguished the federal statute at issue in Gonzales v. Carhart. While both acts required anatomical landmarks, the Virginia statute had no scienter requirement. Moreover, while the federal statute distinguished the act of delivery from the act causing fetal demise, the Virginia act did not.
Professor Colb reports that last week, the Fourth Circuit sat en banc to hear arguments in the case. Professor Colb's analysis of the case is worth reading for many reasons. First, she provides an excellent overview of the legal framework governing the abortion issue. Second, she explains in great detail why later term abortions are necessary in some cases, and explains and rebuts some of the compelling arguments against the practice. You may want to use the piece to supplement your discussion of either of the Carhart cases.
South Dakota Iniative 11 - Controversial proposals aimed at limiting - or even outlawing - abortion are not new in South Dakota. However, an initiative on the ballot tomorrow states that a woman will only be able to obtain an abortion when rape or incest is alleged if she: identifies the rapist (or incestous party), submits to a DNA test (ostensibly to prove it is the rapist's child), and the procedure takes place in the first twenty weeks of the pregnancy.
There is so much that is troubling about this law, one hardly knows where to begin. The law, as proposed, seems to be premised on the assumption that the rapist is the proverbial "stranger in the bushes." But what if the rapist is a family member, a friend, an ex-boyfriend, or even a husband? Of course, in a perfect world, all sexual assaults would be reported, but that is not the case. The Rape, Abuse, and Incest National Network states that only sixty percent of all sexual assaults are reported. Moreover, according to RAINN, only six percent of rapists are ever incarcerated. With statistics like these, it is difficult to understand why placing such an onerous requirement on an innocent party is necessary. As the South Dakota section of the American College of Obstetricians and Gynegologists states in opposition to the ban:
Uncaring, unrealistic treatment of sexual assault victims.
This ban cruelly puts too many obstacles on women who are victims of rape or incest. It mandates a lengthy, cumbersome process that is unworkable, especially for sexual assault victims who choose to undergo a medical rather than a surgical abortion. In fact, it mandates that the medical community take on a law enforcement role by forcing doctors to report rape or incest to authorities – even against an adult patient’s wishes.
This brings me to my second point. The proponents of the law seem to believe that this measure will result in the "demise of Roe v. Wade." They may be overestimating their position. As written, for the reasons stated above, not to mention the incredible affront to personal dignity that such a law would entail, I believe the Court would have little trouble applying Casey to find that this law is a "substantial obstacle" and an undue burden on a woman seeking an abortion in these circumstances. The law requires identification of the rapist, as well as a DNA test. What happens if the rapist flees and is never caught? The law is unclear in this respect as well as others, as noted by its major opponent. In light of the uncertainty, it seems that women are unreasonably and unduly prevented from exercising a right unless they acquiese to increasingly intrusive demands. Moreover, what if a woman wants a medical abortion? Would the law force her to wait until she has to undergo a surgicial procedure. If so, unduly forcing a woman to wait without good medical reason would likely seem to violate Casey as well.
While the proponents may be hoping that the Court will find there is no exception to the Roe rule for rape and incest, that is unlikely. While Roe only mentions the health of the mother, a woman's psychological health would surely be important. Moreover, even if the Court were to rule that states could create limitations on abortion even in cases of rape or incest, based on Casey's statements regarding the decision to have an abortion in difficult circumstances, such as domestic violence, the limitations here likely go too far. The Supreme Court recognized the impact of violence on women's lives in Casey, and it is therefore likely that they will follow that path in any future challenges. In fact, the facts here are arguably stronger than those in Casey in that Casey pre-supposed consenual sex. In the end, the proponents of the bill could be on precipitous legal footing.
I'll try to report back on this after the election results come in.