Not Just Bad Policy, Unconstitutional Policy

As I mentioned below, yesterday Arizona governor Jan Brewer signed a draconian abortion law that, among other things, effectively bans abortions after 18 weeks after conception. This law, like other attempts by state legislatures to ban pre-viability abortions, represents a substantial dilution of a woman’s right to choose. In addition, it’s worth noting that the law is plainly unconstitutional under current law.

Planned Parenthood v. Casey was a substantial retreat from Roe v. Wade, and a lot of the legislation passed by state legislatures that restricts a woman’s reproductive freedom was encouraged by the largely toothless “undue burden” standard the Court established to evaluate abortion regulations. But bans on abortion after 18 or 20 weeks — bans that precede viability — are clearly unconstitutional even under Casey. From the joint opinion written by Justices O’Connor, Kennedy, and Souter:

It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.

The state cannot prohibit abortion before viability — the Court’s opinion is unambiguous on this point. There is no “fetal pain” exception, and nor should there be. As Caitlin Borgmann of the CUNY School of Law has shown, the “fetal pain” justification is a political strategy used by the anti-choice movement to equate fetuses with children, while “the research on fetal pain is at best inconclusive.” Whether Justice Kennedy would stand by the opinion he signed should a case concerning the constitutionality of such laws come to the Supreme Court is unclear. But as of now, the lower courts are required to stop such bills from going into effect by the plain language of Supreme Court precedent.