Home / General / Not Just Bad Policy, Unconstitutional Policy

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.

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  • H-Bob

    Why wouldn’t forcing a woman to continue an unwanted pregnancy be involuntary servitude prohibited by the 13th Amendment ?

    A court would not force a football player to play football for 5 months pursuant to his contract paying him several million dollars (although it would enjoin him from playing football for anyone else), so why should a court be able to force a woman to carry an unwanted fetus for nine months ?

    Also, if a fetus is a person, then why isn’t the fetus’s unwanted occupation and hijacking of the woman’s biological processes a form of involuntary servitude as well ?

    • Stag Party Palin


    • md rackham

      And if the fetus is threatening you, aren’t you allowed to defend youself with lethal force under the various “stand your ground” laws?

    • R Johnston

      You have a point, but it’s so trollishly made and so unlikely to be sincere that it serves as a final proof of Poe’s Law more than it serves as an actual point.

      Honorable Bob, or troll parodying H-Bob, have you ever been sincere?

      • c u n d gulag


      • Informant

        What makes it trollish? I’ve made pretty much this identical argument elsewhere.

  • thebewilderness

    The constitutionality of these laws is beside the point. They pass them to please their base and if they are overturned it is the evol librul baby killers thwarting their heroic efforts so let’s all try harder to elect more right wing nuts so we can save teh babeezz. win/win

  • c u n d gulag

    Guy Noir,
    The first thing a great detective needs, is to get a clue.

  • Joe

    What the Supreme Court holds doesn’t matter unless they strike down laws in ways the President don’t like.

    “the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution”

    This is a “how far will Kennedy” go type law.

  • Spud

    As usual for the Tea Party, government is always just small enough to fit in a womb.

  • thebewilderness

    Do y’all remember this?

    It goes a little further than the Arizona law that declares women to be pregnant two weeks prior to conception but we seem to be well on our way.

    • There’s plenty to be outraged about with the Arizona laws, but I cringe every time I see this bogus criticism — that the Arizona law somehow redefines the beginning of pregnancy. The way that Arizona calculates gestational age (from the first day of the mother’s last period, not from the date of conception) is the standard way of counting. Pretty much every week-by-week pregnancy tracker and obstetrician counts this way. What’s interesting in this case is that counting the non-standard way (from conception) is usually an anti-choice tactic. If you count from conception rather than the standard LMP, you can take a picture of an 8-week-old embryo and call it a 6-week-old embryo, making it seem more developed at an earlier date.

      It is extremely frustrating to see liberals pretend that the Arizona law deviates from the standard method of calculating gestational age because it plays right into anti-choice narratives abut pro-choice liberals: a) that they are not parents; b) that they have little knowledge about or experience with pregnancy; c) that they will enthusiastically switch sides the moment they hear a fetal heartbeat.

      • Except, this is only true in so much as the doctor can use this concrete point to guesstimate what stage of development the fetus is at and, of course, to guess at when you can expect to deliver (or at least that was how it was explained to me when my wife was pregnant with our first son). But, of course, that’s not literally when a pregnancy begins by any stretch of the imagination.

        • Sure, but that doesn’t change the fact that this method of calculation is standard. Acting like the Arizona law redefines the beginning of pregnancy is silly. Even Scott gestures at this argument with his line about “18 or 20 weeks.” To be clear, before five days ago, the only people who reckoned the beginning of a pregnancy from the date of conception rather than from LMP were anti-choice activists hoping to misrepresent the ages of embryos (warning: graphic photos). Now, every liberal blog I visit has adopted the anti-choice method in order to make it sound like there’s a difference between what Arizona calls a 20-week-old fetus and what everyone else calls a 20-week-old fetus. That’s not true. And pretending it is makes everyone who makes that argument sound like he or she has neither been pregnant nor experienced a pregnancy up close (or didn’t pay particularly close attention).

          • R Johnston

            It’s not standard for accurate measurement of fetal age. Not even a tiny little bit. LMP is a standard for guestimating fetal age when a woman’s period is regular and accuracy isn’t especially important, but when a woman’s period is, for one reason or another irregular, or when accuracy matters, LMP dating is malpractice.

            • Even in cases where a woman’s period is irregular or when no natural menstrual cycle is involved (IVF), it is standard practice to count the day of conception as day 14, not day 1 for the calculation of gestational age. In these cases, the due date is 40 weeks from the hypothetical LMP, not 38 weeks from the date of conception. When a pregnant woman says, “I’m 28 weeks along,” she means 28 weeks from LMP. That’s the common understanding, whether you’re relying on info from the Mayo Clinic or from any of the zillion “What to Expect-” development guides.

              The reason this is important is that referring to the embryo/fetus in terms of its actual developmental age (rather than its gestational age as reckoned from LMP) can cloud the issue of viability. The threshold of viability is generally set at 24 weeks LMP, but anti-choice activists are forever telling stories about miracle babies who were born at 21.5 or 22 weeks. In most cases, these babies are 21.5 or 22 weeks post-conception, meaning 23.5 or 24 weeks post-LMP. But by saying, “viability is 21.5 weeks,” they can make it seem like 24 weeks is an unreasonable standard for viability, thus pushing back pre-viability access.

              So, by all means, keep pushing the “18 weeks” line. But don’t be surprised when the legal standard of viability is pushed back to 22 weeks, not because of a breakthrough in care for micro-preemies, but because pro-choicers have adopted an anti-choice frame (yet again).

              • Joe

                “have adopted an anti-choice frame (yet again)”

                If they do this so often that “yet again” is cited (the “sigh” is implied), you really shouldn’t be so extremely frustrated. You should be resigned by now that the other side is such suckers.

                I’m not quite convinced, especially when your link says “numerous ways obstetricians can estimate the “gestational age” and you seem to be insisting one is the obviously normal approach. There seems to be a reasonable ground for confusion here actually.

                • Katya

                  Because one is the “normal” approach, as in, it is the standard practice of American OBs. Every single time you hear a woman say she is “X weeks pregnant,” she is using the LMP dating method. Every single pregnancy book or medical web site I have seen and every OB I have met with uses that same dating method. It’s important to have a common vocabulary for talking about fetal age, and this is the one they use.

              • mpowell

                CGDH is right. If there is any reason to wonder about the actual gestational age, you get a sonogram and get a better estimate. But that part is totally irrelevant to this conversation. They still talk about the fetus’s age as believed gestational age +2 weeks. It’s just how it’s done.

      • Joe

        Do other states have such wording in their statutes?

        • Katya

          It wouldn’t matter, because that’s how OBs calculate gestational age. If a statute bans abortion at 24 weeks, that 24 weeks includes the two weeks prior to conception. When a woman is “24 weeks pregnant,” conception occurred about 22 weeks ago.

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