I wrote this post about twenty-week abortion bans for RH Reality Check, and it explains what a circuit split is, so if you ever wanted to know what that means, you should read this! But you’ll have to click outside the blog which I know causes some of you great consternation. You have been thusly warned. Also, hello everyone! -ABLxx
In the “war on women,” 20-week abortion bans have become a rallying point for both pro- and anti-choice camps alike. While Texas’ recently-enacted law, which among other things bans abortions after 20 weeks, may have garnered most of the media attention in recent weeks, so far 13 states have passed similar bans, and three states have passed even more restrictive laws, prohibiting abortions as early as six weeks’ gestation. Nevertheless, these 20-week abortion bans have been gaining traction.
Much has been written about the politics behind these laws—especially the false claims that they are designed to protect women—but so far, there has been relatively little coverage of the anti-choice litigation strategy in relation to these bans. For instance, how do anti-choice campaigners intend to persuade the Supreme Court to reverse Roe v. Wade? Of all the various state anti-abortion laws, which one is most likely to be used as the test case at the national level?
The Supreme Court won’t review its long-standing abortion jurisprudence unless it has to. Given the controversial nature of abortion, a simple appeal from a state to clarify abortion law probably won’t prompt the Court to act. (The Oklahoma supreme court recently tried this tactic when it struck down Oklahoma’s ultrasound law and practically begged the U.S. Supreme Court to hear the case; the Court didn’t bite.) What will prompt the Supreme Court to act is a conflict between the laws that apply in one circuit and the laws that apply in another.
“Circuit” is a fancy legal term for a group of states. The country is split into eleven circuits, plus the D.C. Circuit, with one federal appeals court in charge of setting the law for each of the circuits. If one circuit court sets law that is different than the law that applies in another circuit, then a legal mess—or, as it is sometimes called, a “circuit split”—results. And since the Supreme Court likes to have laws that bind the entire country, it will intervene to resolve the circuit split.
The push for 20-week abortion bans is part of a national strategy implemented by anti-choice advocates to create exactly the sort of legal mess that will force the Supreme Court to reconsider Roe v. Wade and Planned Parenthood v. Casey, and to revisit the viability standard that has served as the constitutional foundation for abortion rights for 40 years.
An analysis by RH Reality Check suggests that the strategy deployed by anti-choicers is deeply subversive. It capitalizes on personal feelings and anti-abortion hostilities by enticing judges and legislatures to abandon empirical science in favor of biased, agenda-driven science or, as it is sometimes called, “junk science.” Proponents of junk science, which has become a cottage industry among anti-abortion advocates, confuse the issue of fetal viability, invent claims about fetuses feeling pain (or masturbating in utero), and call into question established medical standards.
The strategy is a smart one, to be sure. Anti-choicers understand that once junk science has been incorporated into legislation, courts are not inclined to question those scientific findings—no matter how agenda-driven they are—and will simply apply the law to those “facts.” In cases when junk science is presented to a court, a judge (or justice) hostile to abortion rights requires only the flimsiest reasoning to ground their legal opinion in fact, even if those “facts” are anything but factual.
It is hard to fathom that any court would find these pernicious bans constitutional. After all, the Constitution guarantees a right to choose abortion up until the point of fetal viability, which occurs well after 20 weeks’ gestation. Nevertheless, anti-choice advocates are alarmingly optimistic about their chances in making these bans stick—at least, some are.
The 20-week abortion ban enthusiasts are confident that the key to a reversal of Roe v. Wade rests with Justice Anthony Kennedy. In his majority opinion in Gonzales v. Carhart, Kennedy made it clear that he finds certain abortion procedures to be terrible, and that he is very concerned about the mental state of women who would dare to seek them. What about the bonds of love between mother and child, he wonders in his opinion. What if women come to regret their choice to abort the “infant life they once created and sustained”?
Since Anthony Kennedy’s 2003 opinion in Gonzales, anti-choice litigators and advocates have smartly tailored their litigation strategy to suit Kennedy’s sensibilities. Drawing upon the junk science that anti-abortion advocates like David Reardon and frequent co-authors J.M. Thorp and Priscilla K. Coleman have been developing for decades, anti-choice advocates are weaving junk science into the very fabric of state-level 20-week abortion bans.
[read the rest at RH Reality Check]
gbear
Hello to you too, ABL. Great post. Too bad it got stomped on…
Paul in KY
I guess Justice Kennedy means the infant life created when the woman’s uncle raped her & that she sustained when she didn’t realize she could be pregnant at 12.
Seanly
It’s not just about overturning Roe v. Wade – they want to overturn Griswold also. Well, they actually want to overturn the last 200 years of advancement in human rights…
Patricia Kayden
I’m dying to see these 20-week pro-forced birth laws challenged all the way up to the Supreme Court too. I doubt they’ll stand. Anti-choicers may rue the day they forced SCOTUS to get involved in their anti-women shenanigans.
Yatsuno
@Seanly: Griswold, Loving, Brown vs Board of Education, all of them, Charlie. Hell if they got their way they’d undo all the amendments save the sacred Second and Tenth.
burnspbesq
How’s that strategy working out so far? IIRC, pro-choice advocates have gotten TROs blocking implementation of new and more restrictive state laws in 100 percent of the pending cases.
Zifnab
@burnspbesq: This actually works out great for the state legislatures. Local Congressdudes can make abortion regulation the Sisyphean Stone that they are perpetually campaigning to roll up the side of the cliff. “What’s that? Judicial Activism killed my latest bill? Whelp, that just means you’re going to have to elect me to another term so I can try again. GOP/Babies 2014!”
Linda Featheringill
Hi, ABL. Howya doin’?
Just Some Fuckhead
@gbear:
Yeah, but it was by Tom. There’s only a coupla BJ readers smart enough to understand whatever the hell he’s talking about and I think half of them are poseurs.
Roger Moore
@Yatsuno:
I think they’d probably want to keep the Third, Eleventh, and Twelfth. I have read people who have seriously suggested that none of the Amendments since the 12th are legitimate, which appears to me to be saying roughly that they would like to repeal them all but think it would be easier to do it as a bunch rather than individually.
@Zifnab:
This. The best part of getting them overturned by the courts is that it gives them a reason to want to continue packing the courts, though they’ll care a lot more about the judges’ pro-corporate leanings than their feelings on abortion. It’s all about using the crazy to keep big business happy.
Aimai
Great post ABL.
indycat32
Does anyone know if the clinics forced to shut down perform only abortions, or do they provide other health care services as well. If they do, I think the pro-choice side should refer to them as women’s health care clinics, not abortion clinics. For some, the term abortion clinic conjures up an entirely different image from women’s health care clinic.
Groucho48
@indycat32:
They provide a variety of services. My question to Republicans who claim that they are doing all this for the health of the woman is…If you are so concerned about the health of the woman, why don’t you mandate that all hospitals receiving government money provide safe abortions in a safe environment?
Imani Gandy (ABL)
@Linda Featheringill: Hanging in! Balloon Juice has gotten fancy, lately…
burnspbesq
@indycat32:
Heck, they’re not even just for women’s health issues; my son ended up getting treated at Planned Parenthood for a urinary tract infection.
The good guys lost the Semantic War a long time ago.
Yatsuno
@Roger Moore: Oh sure, just un-amendment me out of a job. :-P
I bet if you asked any of these maroons they couldn’t begin to tell you what’s in the Third, Eleventh, or Twelfth anyway.
WereBear
They mean the health of her soul.
Roger Moore
@Yatsuno:
Sure, but they don’t have to know. The people telling them what to think know, and that’s what’s really important.
Villago Delenda Est
@Seanly:
The assholes want to repeal both The Enlightenment and The Renaissance…the Bachmann twit actually said that The Renaissance was “a mistake”.
These God-bothered twits will not be stopped until they are driven back under the rocks that the crawled out from under.
fuckwit
That’s a fantastic analysis. I like your legal/science writing style, very informative, clear, insightful.
It’s a huge contrast from the snarky, L.A.-screenwriter style I’ve seen in previous posts, which is entertaining to be sure, but this is just worlds ahead of that.
Roger Moore
@Villago Delenda Est:
Kill them all. God will recognize his own.
Belafon
@WereBear: You wish. They want to go to heaven and say “Look at all the children I saved!”
And if I were God, I would list all of the living children that died from starvation, disease, and other problems and say “What about those?”
Roger Moore
@Belafon:
These people need to actually read the red words in their Bibles once in a while. Matthew 25 would be a good place to start.
gene108
@Roger Moore:
They would be correct.
The Constitutional Convention was actually a way for the Founding Fathers to channel the teachings of Jesus into the zeitgeist of the moment. The 11th and 12th Amendments were more or less written by the same dudes, so they get a pass.
The other 15 were made up by folks, who potentially made dark covenants with the anti-Christ and therefore should be treated as the illegitimate works of hell spawn.
Villago Delenda Est
@Roger Moore:
Hey, it worked in the time period these people long for. Let’s give it a shot!
Roger Moore
@gene108:
The basic claim is that Reconstruction governments were illegitimate, so the 13th through 15th Amendments were never legitimately ratified. This basically invalidates everything the government has done since then, including passing all the other Amendments. It’s the same kind of thinking that results in sovereign citizens declaring they can’t be convicted of crimes because the flag in court has a fringe on it.
Smedley Darlington Prunebanks (Mumphrey, et al.)
These assholes don’t give two shits about “life”. If they did, they would be willing to help children once they’ve been born. But they lose all interest once they leave the womb. “Oh, hey, sorry to hear that you go without food three days a week. Ah, well, but now that we think of it, we aren’t sorry. That’s your parents’ fault. We’d love to help you, but that would be socialism. Er, well, yeah, but you know what? We wouldn’t love to help you. We’d rather see you starve to teach your slut mother to keep her legs shut. You’re on your own, you stupid fucking loser.”
ALl they care about is making sure that any woman who has the gall to want a healthy sex life gets “punished” for it. That’s all they care about. They’re deeply sick, fucked up people. Anybody who thinks that much about what other people do in their bedrooms has something badly wrong with them.
Smedley Darlington Prunebanks (Mumphrey, et al.)
@Roger Moore:
I believe you when you say there are people who believe that, but what does that even mean? How can a Constitutional amendment be “illegitimate”? What are they thinking? The Constitution lays out just how we can amend it, and all the amendments went through the hoops they needed to go through. Any Constitutional amendment is by definition “Constitutional”, which, to my feeble mind, would also mean that it’s “legitimate”.
I’d really be interested to learn just what theyir thinking [sic] is about this. Have you ever heard or read anything they’ve said that goes beyond just calling these amendments “illegitimate”? I think it’s also awfully telling that among the would-be illegitimate amendments are those outlawing slavery and giving women the vote. That right there tells anybody all they need to know about these creatures.
Xantar
This post is exactly like all those articles with random proper noun links at the Guardian!
Groucho48
@WereBear:
Souls show up on ultrasounds? Who knew? Might have to reconsider the whole atheist thing if that’s true.
Roger Moore
@Smedley Darlington Prunebanks (Mumphrey, et al.):
Their argument, as I understand it, is that the Reconstruction governments in former Confederate states were illegitimate, and hence any actions they took were similarly illegitimate. Since their votes were needed to ratify the 13th through 15th Amendments, those Amendments were never legitimately ratified. I can kind of get the idea with that; if there were shenanigans in the ratification process, you might be able to claim the Amendments are invalid.
Where they seriously go off the tracks is claiming that this undermines the fundamental legitimacy of everything the government has done since, including all the amendments ratified since then. The obvious answer is that they’re like sports fans who want to blame the whole course of a game on a blown call at the very beginning. Actually, they’re more like fans who want to rewind a whole season because of an officiating mistake in one early season game. It doesn’t matter that their team wound up in the cellar, because that one mistake completely changed the whole season and all the subsequent games would have been different otherwise.
Imani Gandy (ABL)
@fuckwit: i clean up pretty good. (thank you.)
pluege
pro-choice folks need to be careful not to argue abortion rights and woman’s health on the forced-birthers’ terms. At its essence this is a battle between a woman and zygote/embryo/fetus. Pro-choice need to be clear: every woman has total dominion over themselves and it doesn’t matter if the zygote/embryo/fetus is the pope – its inside the woman, can’t live without her, and until such time as it clearly can be a person outside of her is 100% subservient to her needs – no if, ands or buts. When pro-choicers start arguing against the forced-birther argument that a fertilized egg is a person – as good as pope, then they’re losing.
Paul in KY
@indycat32: I don’t think we generally refer to them as ‘abortion clinics’. It is the other side that repeats that ad nauseum.
Paul in KY
@Smedley Darlington Prunebanks (Mumphrey, et al.): Hear, hear!!
Paul in KY
@pluege: You also have to say ‘if the zygote feels pain when it is being terminated, then it will unfortunately feel some pain’. A mouse feels some pain when it is terminated by a trap.