Thursday, September 15, 2011
David Ronald Zoppo has posted "The War on Women" on SSRN. Here is the abstract:
The 2010 mid-term elections were a boon for the Republican Party at the state level. In five states - Alabama, Maine, Minnesota, North Carolina, and Wisconsin - both legislative chambers flipped from Democratic to Republican control. In Indiana, Michigan, Ohio and Pennsylvania, Republicans won over an additional chamber, thereby taking control of the state legislature. And in Colorado, New York, and Oregon, the Republicans won over one chamber to split control with the Democrats.
The resurgence of Republican power at the state level has led to a corresponding resurgence in restrictive abortion regulations - both in those states with new conservative majorities and in traditional Republican strongholds. In some ways, these new regulations reflect existing state abortion laws that have been on the books since the United States Supreme Court’s 1992 ruling in Planned Parenthood v. Casey. New conservative majority have seized the opportunity to pass “traditional” abortion regulations on matters such as spousal notification or “informed consent.” In the history and scheme of abortion regulations, statutes such as these are nothing new.
In other ways, however, these new regulations - and the conservative majorities that have implemented them - represent a departure from the past. They have been drafted and passed in an arguably more polarized political climate, and their substance reflects the radical prerogative of their proponents. For example, South Dakota passed a law - which was struck down by the Eighth Circuit - requiring doctors to tell patients that the abortion procedure increases the risk of suicide. Another law in Texas - which was blocked by a federal district court - required doctors to give patients a sonogram and to provide patients with audio of the fetal heartbeat. Women could opt out of this process but they would have to certify in writing that their pregnancy was the result of rape or incest, which would remain with their medical record for at least seven years. These terms of these laws are unprecedented, and they demonstrate a new frontier in the already contentious area of abortion regulation.
The assault on abortion providers has been equally as pronounced. In the first half of 2011, five states - all controlled by Republican legislatures - voted to preclude Planned Parenthood from receiving Title X Medicare funds for family planning funding. Federal judges in several states have issued injunctions preventing these laws from going in to effect on the basis that they impermissibly exclude otherwise qualified entity from receiving funds under Title X. Kansas passed a law that would effectively shut down abortion clinics in that state by requiring that they meet certain space snd storage requirements. Virginia is considering a similar law. It seems clear that abortion opponents have broadened their strategy to target not just a woman’s individual privacy rights under Roe and Casey, but also her access rights as well.
This new era of abortion regulation at the state level raises important questions that will undoubtedly be addressed by the courts. To what extent do these laws violate the Supreme Court’s “undue burden” threshold as announced in Casey? How would the current Court rule in the event one of these laws come before it? To what extent to these laws violate doctors’ or patients’ first amendment rights? How does Title X figure in to states’ attempts to regulate otherwise eligible Medicare and Medicaid providers? What sort of legal theories might be most persuasive and effective for an advocate seeking to defeat these laws? What weaknesses inhere those legal theories? And, perhaps most importantly, what is the role of the courts in all this? The new slew of abortion regulation at the state level posits not just a fascinating development in abortion law in this country. They also resurrect the timeless debate about the tension between the legislature and the judiciary; is now an appropriate time for judicial discretion to override the popular will in the name of individual rights?
Though many scholars have commented on the abortion regulation at the state level, none have addressed this most recent development in abortion law and the abortion debate. My paper will proceed by providing a brief overview of the Court’s decisions in Roe and Casey - and, to a lesser extent, its rulings in Griswold and other seminal privacy cases. It will then proceed by providing a brief history and synopsis of abortion regulations at the state level and how the courts have treated such laws under the Supreme Court’s privacy jurisprudence. The bulk of the paper will be devoted to answering some - and hopefully all - of the questions above. As research for this topic is still in its preliminary stages, the exact focus and thesis of the paper have not yet been ironed out, but I expect they will be as time proceeds.