The Church Report

Has the Pro-Life Movement Entered the Post-Roe v. Wade Era?

Friday, October 16, 2009

Steven H. Aden, Esq.

By Steve H. Aden, Esq.

For decades, the pro-life movement has longed for and worked toward the day when the Supreme Court will overturn its legally and morally abominable decision in Roe v. Wade (1973) that mothers have a constitutional right to abortion. At that point, the narrative goes, the battle for life will be returned to the states, most of which have abortion-restrictive laws and courts and legislatures that are more responsive to the majority of citizens who favor protecting life in the womb. But a series of recent lawsuits against abortion restrictions, brought not in federal courts where they have traditionally been filed, but in state courts under state constitutional provisions, raise the question whether, in the minds of the abortion industry, the battle has already shifted to the states.

Legal developments unfolding in Illinois and Arizona highlight this shifting strategy. Although Illinois passed a parental notice statute in 1995, it never took effect because the American Civil Liberties Union immediately filed a federal lawsuit against it that kept it tied up in court for nearly 15 years. The court of appeals finally handed a defeat to the ACLU and affirmed the constitutionality of the law this summer – a foregone conclusion to most observers given that the U.S. Supreme Court had held both before and after the filing of that suit that parental involvement laws passed muster under Roe.

Undeterred, the ACLU re-filed its lawsuit last week, mere days before the law was to finally become effective, this time in a Cook County (Chicago) state court, arguing that requiring notice to parents of their minor daughter’s desire to destroy her child (and their grandchild) violates the Illinois Constitution’s guarantees of equal protection, privacy, and due process. Note the strategy: the ACLU has not given up; they’ve simply changed the venue.

Many people don’t remember or know that, before Roe, Illinois prohibited all abortions except those “necessary for the preservation of the woman’s life.” Illinois’ law was swept away by Roe (along with abortion restrictions in all 50 states), with the state supreme court quickly burying the protective state law in deference to federal law within a year after Roe. However, along with most states (roughly 35), Illinois’ supreme court has not yet decided whether its own constitution protects access to abortion to an equal or greater degree than Roe does under the federal Constitution.

What does all this mean? It means that if the ACLU succeeds, it will have imposed an abortion-on-demand regime on Illinoisans that could well be more draconian than anything on the federal level. The ACLU is seeking to skirt the current regime of permissible parental involvement and government regulation of abortion established by the Supreme Court in Roe and Planned Parenthood v. Casey (1992).

The battle is certainly not limited to Illinois, however. This year, the Arizona Legislature passed a series of amendments designed to ensure that women considering abortion have full information about its harmful consequences. Believing that their bottom lines are more important than a woman’s health and safety, abortion providers represented by the Center for Reproductive Rights in federal court and Planned Parenthood in state court challenged the amendments.

The courts held back-to-back injunction hearings the day before the amendments were to take effect on Sept. 30, but issued conflicting rulings. The federal court denied an injunction, relying on post-Roe Supreme Court cases allowing states to provide for patient safety even if the net result is that accessing abortion becomes more difficult for some women because, given the two choices, patient safety is obviously more important.

Planned Parenthood had greater success in state court. The judge ruled that Planned Parenthood was “likely to succeed” in proving a state constitutional violation and ordered a hold on the amendments while the case works its way through the courts. Planned Parenthood’s lawyers are undoubtedly mindful that, like Illinois, Arizona’s appeals courts have not yet decided whether the Arizona Constitution provides greater protection for abortion than Roe. A victory against Arizona’s modest and reasonable abortion regulations would enshrine the “right to abortion” as fundamental under state law unless and until Arizona lawmakers amend the state constitution—a daunting task for any state.

Other recent filings appear to confirm that these cases are the result of a coordinated strategy, not isolated coincidences.

In North Dakota, voters approved amendments to the state’s abortion control act that required that mothers be given an opportunity to view an ultrasound of their baby and to hear the baby’s heartbeat. The sole abortion clinic in the state, Red River Women’s Clinic, sued in state court, arguing that the amendment imposed an unlawful burden on women seeking abortions at the clinic because its equipment was incapable of registering a baby’s heartbeat and new equipment would be too costly to allow it to stay in business. The state’s attorneys made key concessions in arguments before the court, allowing the clinic to sidestep the law and remain in business.

And in Oklahoma, an abortion clinic sued in state court to overturn that state’s new ultrasound law and has succeeded on technical grounds.

It has often been noted, and appropriately so, that the pro-life movement should not sit on its hands waiting for the opportunity to change the makeup of the Supreme Court so that Roe can finally be tossed into the dustbin of legal history and the right to protect life returned to the states. If it is true that, as these recent developments ominously indicate, the ACLU, Planned Parenthood, and its allies have begun to recognize that the Supreme Court is no longer very attentive to their arguments and are marching into state courts as if Roe is already a shell of its former self, then the proponents of life had better begin to martial their own legal forces – in the halls of state legislatures and among life-friendly advocacy groups and legal organizations, such as the Alliance Defense Fund – to meet this coming challenge.

And we should do it quickly, or all the states could have “Roe v. Wade Compliant” stamped on their constitutions.

Senior Legal Counsel Steven H. Aden directs sanctity of life litigation from the Washington, D.C., office of the Alliance Defense Fund, a legal alliance employing a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family. An honors graduate of Georgetown University Law Center, Aden is the author of numerous law review articles and periodical publications on constitutional law and civil rights topics.