Tagged: abortion


FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015


Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.


Partial Birth Abortion and Scientific Uncertainty

Although my area of research is primarily environmental law, I also explore how lawmakers deal with scientific uncertainty. And so the recent decision in the consolidated partial-birth abortion cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) really interests me.

In these cases, Justice Kennedy states that “when medical uncertainty persists . . . The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Accordingly, the Court deferred to Congressional findings in 2003 that partial-birth abortion is never medically necessary. While this is definitely a blow for advocates of abortion rights, I can’t say (without further deeper reflection) that I automatically disagree with this approach, in which the majority deferred to Congressional findings, albeit not “uncritically.” This approach, after all, affects many areas in which Congress has made decisions to regulate in the face of scientific uncertainty, including environmental and health regulation. For example, how much can the presence of scientific uncertainty allow Congress to authorize agencies to protect the environment under the Commerce Clause?

The key, though, is how this “not uncritical” examination plays out in the future, and how “uncertainty” is defined. How much medical disagreement is necessarily to overcome a Congressional finding? If the bar is too high–which it could be, given how one could argue that all of science is “uncertain” and “unstable” to some extent–then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet “uncertain” risks.

What I would have liked to have seen, therefore, is a more thorough delineation of the nature of uncertainty and degrees of uncertainty, setting out ways for courts to inquire into its legal existence, which of course could be distinct from its epistemological existence. (This, by the way, seemed incomplete in the global-warming case of Massachusetts v. EPA as well.) Instead, it’s treated as almost an on-off thing, rather than recognizing degrees (and kinds) of uncertainty.

I would also like to have seen some recognition that scientific findings and legal findings are often intermingled. As many scholars observe, much of the science at issue in legal decisions involve “trans-scientific determinations”–determinations that involve both scientific and policy components. Because of this, a judicial determination could go either way depending on whether you look at a given determination as scientific, or legal (despite the presence of both elements). On one hand, you’ve got courts deferring to Congress when it “act[s] in areas fraught with medical and scientific uncertainties,” but you’ve also got the canon that courts apply (somewhat inconsistently) to construe statutes to avoid constitutional risks–which also involve areas of uncertainty, albeit legal uncertainty. And so without delineating how you “tell” what counts as science (for legal purposes) or law (for legal purposes), you end up with a situation where the rule of deference that one applies (or doesn’t apply) will depend heavily on a standardless characterization of the nature of a determination.

Anyway, I’m still thinking this through! So I’d really appreciate further thoughts and suggestions!