Law & the Courts

Lower-Court Decisions Reveal Roe v. Wade’s Extremism

Pro-life signs outside the Supreme Court in June 2014. (Jim Bourg/Reuters)
Americans support late-term abortion restrictions, but Supreme Court jurisprudence prevents commonsense regulations.

Abortion law is a matter of life and death. With each decision, courts decide whether unborn children will live or die. Given these stakes, it is unfortunate that many Americans are uninformed about the current state of the law.

Americans support laws restricting abortion in the second trimester provided that they contain exceptions protecting maternal health. A Gallup poll found that, in 2018, more than 70 percent of Americans agreed that second-trimester abortion should be “generally illegal.” Gallup has found similar results for more than a decade. Surprisingly, polls also indicate that a majority of Americans oppose reversing Roe v. Wade, even though Roe prevents states from imposing significant restrictions on abortion well into the second trimester. America is one of only seven countries to allow elective abortions after 20 weeks.

The disconnect is stunning. An overwhelming majority of Americans favor restricting second- and third-trimester abortions, yet they support a Supreme Court decision that prohibits such restrictions. One explanation for this discrepancy is that many Americans do not know how courts have applied Roe. If Americans start to understand the extremism of Roe, attitudes might begin to change.

In West Alabama Women’s Center v. Williamson, the Court of Appeals for the Eleventh Circuit struck down an Alabama law requiring abortionists to perform second-trimester abortions in a humane manner. Specifically, the statute regulated dilation-and-evacuation abortions, a method otherwise known by the more evocative name “dismemberment abortion.”

Dismemberment abortion is used after 15 weeks’ gestation, in the second trimester of pregnancy. An unborn baby’s heart is beating well before that point. The law did not ban abortion in the first trimester; in fact, it did not ban any abortions at all. According to the court, Alabama’s law merely required stopping an unborn child’s heartbeat “before ripping apart its body.” The statute contained an exception to protect maternal health.

The court recognized that dismemberment abortion “involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child.” The court acknowledged that “in this type of abortion the unborn child dies the way anyone else would if dismembered alive. It bleeds to death as it is torn limb from limb.” Ultrasound images confirm that fetal death is not instantaneous. The court quoted Justice Ruth Bader Ginsburg’s opinion in a prior case, in which she acknowledged that this form of abortion could be characterized as “gruesome” and “brutal.”

Nonetheless, the court concluded that the Supreme Court’s reasoning in Roe and other abortion cases rendered the Alabama law unconstitutional. The law would impose an “undue burden” on the rights of the approximately 500 women who obtain this type of abortion procedure in the state each year. According to the court, requiring that an unborn baby be killed before dismemberment could impose added hardship, cost, and danger on the mother. Alabama contested those findings and provided expert testimony disputing them, but the court sided with the plaintiffs.

The court appeared uncomfortable about its decision. Its opinion sounded defensive: “There is only one Supreme Court, and we are not it.” In other words, the appellate court was required to follow Supreme Court precedent, even if it considered the higher court’s conclusion legally dubious and barbaric. A concurring judge in the Alabama case wrote that the Supreme Court’s abortion jurisprudence “has no basis in the Constitution.” Most Americans support banning abortion in the second trimester; apparently Roe will not even allow states to require that such abortions be performed humanely.

In another case, Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of Indiana State Department of Health, the Seventh Circuit Court of Appeals struck down Indiana’s ban on second-trimester abortions performed for discriminatory or eugenic purposes. Indiana prohibited abortions that occurred 20 weeks into pregnancy if the woman was seeking the abortion solely because of the unborn child’s sex, race, color, national origin, or Down Syndrome diagnosis.

The court found the law unconstitutional. It explained that, under Roe and related cases, a woman’s right to abort her child before viability is “categorical.” Up to 20 weeks of pregnancy, states cannot prohibit women from having abortions for any reason, including the reasons at issue in the case of the Indiana restriction.

A concurring judge described the court’s ruling as “unfortunate,” “absurd,” and “regrettable.” However, he felt obligated to join the majority because, under Roe, abortion is “the most favored right in American law,” and “the purported right to have a pre-viability abortion is more ironclad even then the rights enumerated in the Bill of Rights.”

By 20 weeks into a pregnancy, a baby can move her limbs and suck her thumb. A baby girl in Texas survived after being born at 21 weeks. Under current law, if her mother had decided that she would have preferred to have a son, she could have killed her unborn baby just one week before she was born.

In Jackson Women’s Health Organization v. Currier, a district-court judge struck down Mississippi’s ban on abortions occurring after 15 weeks of pregnancy. The law provided exceptions for medical emergencies and cases of severe fetal abnormalities. The court held that all bans on abortion prior to viability are unconstitutional. The court refused to consider whether a 15-week-old fetus might feel pain, because, under Supreme Court precedent, such questions are irrelevant prior to viability.

In Bryant v. Woodall, a district-court judge rejected a challenge to North Carolina’s ban on abortion after the 20th week of pregnancy. That might sound like a rare instance of sanity in abortion jurisprudence, but alas, the judge only rejected the challenge on procedural grounds. His decision actually makes it unlikely that the state will ever enforce the law.

The court found that North Carolina has never enforced the law and gave no indication that it ever planned on doing so. The court found evidence that abortionists in North Carolina kill fetuses after 20 weeks, but the state had never prosecuted anyone for doing so. Therefore, the plaintiffs did not have sufficient standing to claim that they have been threatened or harmed by the statute.  While North Carolina was technically allowed to maintain its 20-week abortion ban, the Supreme Court’s abortion jurisprudence has likely prevented it from ever enforcing the law.

Two federal appellate courts, the Ninth and Tenth Circuits, have previously struck down 20-week bans. If North Carolina ever enforces this law, there is a significant possibility that it will be found unconstitutional. The fact that North Carolina can pass a law protecting the lives of unborn babies at 20 weeks’ gestation — so long as the law is never actually enforced — offers little solace to Americans who favor restricting abortion in the second trimester.

Decisions such as these are not outliers. Federal courts have consistently found that states may not prohibit abortions, well into the second trimester. In fact, under current law, even post-viability abortion regulations that take effect after 23 or 24 weeks of pregnancy must contain expansive “health” exceptions that abortionists can easily exploit to allow elective abortions.

Abortion providers have long engaged in obfuscation on these matters. They claim that access to abortion is gravely imperiled, which is demonstrably false. Abortion-rights organizations such as Planned Parenthood are reluctant even to utter the word “abortion.” Instead, they misdirect people and describe themselves with euphemisms such as “women’s health,” when they are actually in the lucrative business of killing unborn babies.

Abortion law in America is a mess. Ours is among the most permissive regimes in the world, even though most Americans reject late-term abortion. If we want abortion law to reflect that moral judgment, it is imperative that more people understand the extremism of Roe v. Wade and subsequent cases. Only then will Americans fully understand why the Supreme Court must overturn those cases.

Howard Slugh — Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.

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