Some awesome friends and I won a case competition on abortion policy this weekend. We had to talk about the justness and constitutionality of allowing different states to regulate abortion in different ways, and what the appropriate role of science was in formulating those different regulations.
Below is what I wrote as a constitutional argument against an unscientific, unjust, and (IMHO) unconstitutional law that was recently passed in Nebraska.
It is constitutional for states to have different laws regulating abortion as long as those laws do not place an “undue burden” on women seeking abortion before viability . State laws must not unduly burden women seeking abortions before viability and must ensure that whatever burdens they impose do not violate women’s 14th Amendment right to equal protection under the law. The Nebraska law is unconstitutional because it places an undue burden on women aborting fetuses between 20 and 24 weeks and violates Nebraska women’s right to equal protection. If implemented in Pennsylvania, it would likely be found unconstitutional.
There has never been a time in American history where abortion was completely banned or freely allowed . In the United States, abortion has always been legally permissible to save the life of the mother, and has never been legally available in all situations. The constitutional question is therefore how much regulation, when, and why barriers should be erected.
How much a state can regulate abortion depends on what framework is in play. Under Roe, regulation was a gradated balance of fetal and woman’s rights, where the woman’s rights always prevailed in the first trimester, were subject to more regulation in the second but could not be wholly denied, and were open to denial in the third trimester. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the state could place as many burdens as it pleased on a woman seeking abortion before viability as they were not undue and many more after viability. When a state can regulate abortion currently depends on viability and the health of the mother. The barriers it places may currently be motivated by any number of factors, including but not exclusive to protecting the health of the woman. Unlike with freedom of speech, legislative intent is not a factor in assessing the constitutionality of laws burdening women seeking abortions.
While Roe v. Wade, 410 U.S. 113 (1973) found the constitutional right to an abortion in the Ninth Amendment’s implicit protection of privacy, Casey derived it from find the right to liberty guaranteed by the 14th Amendment’s Due Process Clause. The privacy finding enabled women’s access to abortion because the procedure involves the confidential relationship of patient to physician, and a woman’s sexual history, which is generally considered private. To those who argue Roe is invalid because there is no amendment protecting privacy, it is important to remember there is no amendment guaranteeing property either: they are both so intrinsic to our system of governance they were left implied. As is argued by Kennedy in Casey, the 14th Amendment protects a wide range of liberties both common (marriage) and uncommon (contraceptives) at the time of ratification. Though abortion is a politically toxic issue, its constitutionally defenses are strong and persuasive.
Viability and Undue Burden Standards
After Casey states’ ability to regulate abortion was conditioned on viability. Before viability, a state might erect barriers to abortion as long as they did not constitute an “undue burden”, defined as “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” After viability, the state must balance the growing collections of legal rights of the fetus against the life, mental health and physical health of the pregnant woman. This was a strong departure from the trimester framework of Roe.
Roe left any abortion in the first trimester (weeks zero through 12) entirely to the woman and her physician, in the second trimester until viability state’s could regulate abortion “in ways reasonably related to maternal health”. After viability (generally between 24 and 28 weeks) the state could choose to “regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”. Casey not only did away with the trimester framework but enabled states to burden women seeking an abortion in their first trimester when they could not under Roe. These burdens may be unjust before they become undue, particularly when they effect women of marginalized communities particularly.
The Nebraska statute is an attempt to replace the viability test with the test of fetal pain. Under this law, fetuses begin accruing rights at a standard time when the legislators feel they may begin to feel pain. This approach is untested in the courts and unlikely to withstand constitutional scrutiny because it bars women from receiving abortions they had a right to under Casey and because research on fetal pain is inconclusive at best. Research cited in the law claims that some fetuses begin to feel pain at 20 weeks. After 20 weeks, a woman may only abort it if
(1) she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function or (2) it is necessary to preserve the life of an unborn child.
This statute places a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” the definition of an undue burden. The burdens the statute places on women seeking abortions would be constitutional if they initiated after viability, however because viability occurs three to four weeks after the 20-week mark, this statute is probably unconstitutional.
“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”–Patrick Henry