Harsh criticism from The New York Times of some recent court decisions in reproductive health cases this week. The editorial page took three
judges to task for deciding cases that have “failed to preserve constitutional protections for women.”
The piece included the Center for Reproductive Rights’ challenge to Arizona’s 20-week abortion ban-an extreme and dangerous law that outlawed abortion at a
critical point in pregnancy when most women undergo prenatal testing to evaluate their own health and the status of the pregnancy. We filed
that case with the ACLU on July 12, 2012. Soon thereafter, on July 30, the judge ruled against us, and denied our request to block enforcement of the law
through the course of the lawsuit.
The editorial promptly blasted the ruling the next day,
saying it “defies binding Supreme Court precedent that prevents states from banning abortion before a fetus can survive outside the womb.”
It is the most aggressive of the previability abortion bans passed recently by a handful of states. It defies binding Supreme Court precedent that prevents
states from banning abortions before a fetus can survive outside the womb, which generally occurs at about 24 weeks.
To get around that pesky barrier, Judge Teilborg erroneously characterized Arizona’s outright ban as a permissible “regulation” that limits only “some”
previability abortions. To make that argument, he relied, in part, on the fact that the ban contains a dangerously narrow exception for a “medical
The judge also found the state had valid reason to enact the statute, embracing medically dubious claims about when a fetus can begin to feel pain. He was
dismissive of realistic concerns that the law endangers women who develop life- or health-threatening medical problems late in pregnancy and that severe
fetal abnormalities sometimes cannot be diagnosed before 20 weeks.
An emergency appeal to the United States Court of Appeals for the Ninth Circuit seeking to stop the law from taking effect on Thursday should be granted.
In United States District Court in Denver on Friday, Judge John Kane
issued a temporary injunction
forbidding the Obama administration from requiring a secular, for-profit heating, ventilation and air-conditioning company from complying with the new
requirement that it provide employees with contraceptive coverage.
There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a
religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on
the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute
protecting such exercise should not be in play.
The Justice Department argued that the notion of a religious freedom violation should be dismissed, but, disappointingly, Judge Kane declined to do so.
The third ruling was a decision last Tuesday by the United States Court of Appeals for the Eighth Circuit in St. Louis. The court, sitting en banc, upheld,
by a 7-to-4 vote, a 2005 South Dakota law requiring doctors to misinform women seeking an abortion that they face an increased risk of suicide and suicidal
thoughts if they go ahead. This dreadful ruling ignores the overwhelming weight of scientific evidence.
Thankfully, the U.S. Court of Appeals for the Ninth Circuit reversed the Arizona decision, and the law will not go into effect while the case is still