The West Virginia law banning elective abortion after five months, or 20 weeks, took effect near the end of May. Normally we would not be surprised if Planned Parenthood or some other plaintiff had already filed suit challenging the law.
But in this case? Crickets. I have seen no report that either Planned Parenthood or any other organization or individual has filed a lawsuit challenging the West Virginia Pain-Capable Unborn Child Protection Act.
Maybe in coming days we’ll see new litigation in West Virginia or some other state with a law against abortion after five months, by which time an unborn child is capable of feeling pain. I’m not saying we won’t see such litigation. Indeed, I hope we do. That way a case might reach the U.S. Supreme Court and the Court can uphold 20-week laws as constitutional.
But in the meantime, the silence is telling.
As Alliance Defending Freedom attorney Casey Mattox explains, it suggests that abortion advocates lack confidence in their litigation prospects.
There has been litigation involving 20-week laws in Arizona and Idaho. Both Arizona and Idaho fall under the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, which ruled against 20-week laws in both cases. (According to Mattox, “Another lawsuit now in the Georgia Supreme Court has achieved a preliminary injunction solely on state constitutional grounds because the abortionist who sued asked the court not to rule on any federal constitutional questions.”)
In many if not most cases, 20-week laws will have the effect of prohibiting abortion before viability. The “viability rule” created by the U.S. Supreme Court provides that government may not prohibit abortion before viability.
But the problem for Planned Parenthood and other abortion advocates is that the viability rule is indefensible both morally and as a matter of constitutional law. Because these laws advance a state interest — protecting pain-capable babies from pain — that wasn’t considered by the Supreme Court in Roe or Casey, a federal intermediate appellate court would be justified in concluding that the viability rule does not apply to 20-week laws. That would create a split with the Ninth Circuit. And in a 20-week case, the Supreme Court might very well constrain the viability rule in a way allowing for 20-week laws, or even abandon the viability rule altogether.
By not filing more lawsuits against 20-week laws, Planned Parenthood and other pro-abortion-rights plaintiffs are doing what they can to avoid a circuit split on the issue, helping to push off the day of reckoning.
“Why have abortion advocates chosen not to challenge these laws that they spill so many words attacking?” Mattox has written. “Fear. They know that their arguments for late-term abortion are likely to fail outside the Ninth Circuit — and probably in the Supreme Court.”
As Mattox notes, “every day that passes where abortionists leave fetal pain statutes on the books is further testimony that Planned Parenthood’s claims [that Pain-Capable laws harm women’s health] cannot be trusted.”