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Will the Roberts Court overturn Roe v. Wade?: Part II

Part II of our three-part series on the status of reproductive health issues in the lower courts resumes with more examples of court splits and fodder for Supreme Court review. There is growing concern that anti-choice activists are looking to take advantage of a sympathetic Supreme Court to ultimately overturn Roe v. Wade.

Photo: Planned Parenthood Action Fund/womenarewatching.org
Requiring doctors to provide non-medically necessary information to women seeking abortions

In addition to the spate of state laws mandating unnecessary procedures like ultrasounds, as examined in Part I, other states have recently passed laws requiring the provision of unnecessary information to women seeking abortions. Much of the legislation requires doctors to make statements that have nothing to do with women’s health, but are simply a way to discourage women from getting abortions. The lower federal courts have been split on this issue, upholding some state laws while striking down others as unconstitutional. None of these cases have yet been appealed to the Supreme Court, however, the circuit split increases the chances that the Court might grant review in one or more cases.

This July, in Planned Parenthood v. Rounds, the U.S. Court of Appeals for the Eighth Circuit upheld a South Dakota “suicide advisory” provision requiring doctors to tell a woman seeking an abortion that after the procedure she has an increased risk of committing suicide. Despite the shaky evidence for this assertion, which has been soundly refuted by the American Psychological Association, the Eighth Circuit upheld the provision, finding that “a truthful disclosure cannot be unconstitutionally misleading or irrelevant simply because some degree of medical and scientific uncertainty persists.”

In Nebraska and Indiana, similar laws mandating non-medically necessary information were rejected. A Nebraska “informed consent” abortion law was challenged in Planned Parenthood v. Heineman. The law had two troubling provisions. First, it required abortion providers to conduct risk evaluations that were impossible to complete satisfactorily. According to the law, abortion providers would have to evaluate women for every risk factor and disclose every associated complication and individualized quantified risk rate for them. Second, it created a private cause of action for a woman against medical workers and health facilities for failing to meet these impossible standards. Federal District Court Judge Laurie Smith Camp granted a preliminary injunction in July 2010 on the grounds that the law would likely be found unconstitutional under Casey as placing an “undue burden” on a woman’s right to choose. In June 2012, anti-choice groups appealed to the Supreme Court to reverse the Eighth Circuit’s decision denying their motion to intervene in this case.

In Indiana, Planned Parenthood challenged a law that required abortion providers to tell women that a fetus younger than 20 weeks old feels pain, despite scientific evidence to the contrary. The Indiana law also banned state agencies from contracting with or granting money to organizations that provide abortions. In June 2011, Federal District Court Judge Tanya Walton Pratt granted a preliminary injunction to halt enforcement of the law in Planned Parenthood v. Commissioner.

Restricting abortions after 20 weeks

Eighteen states have laws prohibiting dilation and extraction procedures (so-called “partial birth abortion”). The most recent challenge to such a law is currently pending before the Ninth Circuit.

In Arizona, three doctors who perform abortions challenged a state law that would ban abortions after 20 weeks even if it is known that the fetus would not be born alive or survive after birth. The doctors sought an injunction to prevent the law from going into effect, which Federal District Court Judge James Teilborg denied on July 30. Judge Teilborg went even further by dismissing the doctors’ claims in the case, styled Isaacson v. Horne, finding that the law is constitutional because it does not place an undue burden on a woman’s right to choose. Teilborg relied on the same suspect “fetal pain” science that is at issue in the Indiana case discussed above. Plaintiffs immediately sought an injunction from the Ninth Circuit to prevent the law from taking effect. The Ninth Circuit granted the injunction and ordered a first set of briefs on the constitutionality of the law to be submitted by September 4.

Banning certain abortion drugs so that abortions have to be performed in a hospital

In yet another challenge to women’s right to choose, Ohio passed a law that prohibited the use of an abortion drug that does not require a hospital stay. In Planned Parenthood v. DeWine, Federal District Court Judge Susan Dlott ruled last September in favor of Planned Parenthood because the ban placed an undue burden on women’s right to choose by requiring surgery rather than the less invasive option of taking a prescribed drug.

Women are facing an ever more oppressive landscape of restrictive state abortion laws. While pro-choice groups have had some success in challenging these laws in court, the results have been uneven. Today, it seems, a woman’s right to choose depends on what state she is in. Tomorrow, if the Supreme Court decides to weigh in, the reality could be even more drastic.

Up next . . .

Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.


Part I focused on the cases and issues most likely to reach the Supreme Court in the near future.