The Corner

Law & the Courts

Our Abortion Jurisprudence Is Terrible

Planned Parenthood president Dr. Leana Wen speaks at a protest against anti-abortion legislation at the U.S. Supreme Court in Washington, U.S., May 21, 2019. (James Lawler Duggan/Reuters)

Mississippi governor Phil Bryant signed a bill last March proscribing abortion after doctors could detect an unborn child’s heartbeat. The usual canticle of pro-choice outrage ensued and led to a protracted legal battle between two abortion providers and the state’s medical officials. The Fifth Circuit Court of Appeals handed down its per curiam ruling this morning.

The appellate court relied upon its holding in a 2018 case, weighing the constitutionality of a Mississippi law that banned most abortions after 15 weeks’ gestational age. Since the Fifth Circuit held that the state’s 15-week abortion ban violated the Supreme Court’s ruling in Planned Parenthood v. Casey — the law was not “a mere regulation of previability abortions subject to the ‘undue burden’ test” laid out in Casey but instead was a “ban on abortion after 15 weeks, ‘which Casey does not tolerate” — the fetal heartbeat law is also unconstitutional, since it takes effect earlier in the pregnancy.

The relevant passage from Casey:

Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional. See, e. g.Akron I, 462 U. S., at 462-463 (O’CONNOR, J., dissenting). The answer is no.

The Constitution, of course, proscribes no such thing. But then, all of our abortion jurisprudence is a constitutional house of cards. Roe v. Wade is not constitutional law in any meaningful sense, and necessarily begets such legal absurdities as the conclusion that placing an “undue burden on the woman’s decision” to kill her child “before fetal viability” is unconstitutional.

Some precedent.

Federal appellate courts are nevertheless bound by that precedent — legally if not ethically — so the Fifth Circuit cited its 2018 holding in striking down Mississippi’s fetal heartbeat law:

‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” The parties disagree about when that activity occurs during a pregnancy. The clinic contends it occurs at six weeks. Mississippi argues it can occur anywhere between six and twelve weeks. But all agree that cardiac activity can be detected well before the fetus is viable. That dooms the law. If a ban on abortion after 15 weeks is unconstitutional, then it follows that a ban on abortion at an earlier stage of pregnancy is also unconstitutional.

The notion that Mississippi has no compelling “interest in fetal life” once a heartbeat is detected is absurd, only outdone in absurdity by the suggestion that the Constitution somehow prevents the state from defending the lives of those unborn children.

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