Tuesday, July 12, 2016
New York Times (July 9, 2016): Anti-Abortion Group Presses Ahead Despite Recent Supreme Court Ruling, by Erik Eckholm:
The National Right to Life Committee met last week to discuss its strategy in light of the recent Supreme Court ruling in Whole Woman's Health v. Hellerstedt. The Supreme Court struck down Texas admitting privileges and ambulatory surgical requirements imposed on abortion clinics, finding that they imposed an undue burden on women's access to abortion. The case should make it difficult for states to justify targeted regulation of abortion providers, or TRAP laws, which impose more stringent regulatory requirements on doctors and facilities providing abortions than other comparable medical procedures.
Leaders of the NRLC indicated that rather than pushing TRAP laws, they will focus on passing legislation with the explicit purpose of protecting the fetus. Unlike TRAP laws that purport to impose medical regulations on abortions for the purpose of making the procedure safer (which the Supreme Court found was untrue in the case of the Texas regulations), laws seeking to protect the "humanity of the unborn" introduce a state purpose and benefit not at issue in Hellerstedt.
However, the two types of laws promoted by the NLRC pose their own constitutional problems. The NLRC is encouraging states to pass laws that ban abortion at 20 weeks (15 states have already passed 20 week bans) based on claims that the fetus can feel pain at 20 weeks. However current Supreme Court precedent prohibits bans on abortion prior to fetal viability, which is generally understood to occur at 22 weeks. There is also questionable medical support for the theory that the fetus can feel pain at 20 weeks, which is significant given the enhanced scrutiny that the Court employed in Hellerstedt to determine that the Texas regulations did not have the medical benefits claimed by the state.
The second provision backed by the NLRC would ban a technique used in second trimester abortions known as dilation and evacuation (D & E), which results removal of the fetus in parts. Only about 10% of abortions are performed after 12 weeks of pregnancy, and the provision does not change the situations in which women are entitled to obtain abortions. However, it significantly limits doctor and patient choice about how the procedure is performed. D & E is the most common form of second trimester abortion and is viewed by many doctors as the safest and most convenient technique for a later abortion. D & E bans have passed in Oklahoma and Kansas but have been blocked by courts because of their intrusion on women's medical procedures and because they could endanger women's health by exposing them to unneeded or more dangerous procedures.