The Pro-Choice Legal Strategy


Not long ago, Rachel Maddow and Dahlia Lithwick argued that pro-choice organizations were essentially allowing the overturning of Roe by being reluctant to challenge statewide laws that might result in even more restrictions in court. Writing just as the ACLU and Planned Parenthood sue South Dakota to overturn its draconian laws and Louisiana legislators try to pass an all-out ban, Emily Bazelon argues in the Times magazine that pro-choicers are simply being tactical by staying away from unpopular fights.

“Litigators trying to uphold a woman’s right to an abortion are not running scared,” Bazelon writes. “In fact, they are being remarkably shrewd in their case selection.” That means staying away from the later-abortion bans enacted on the grounds of “fetal pain” or other spurious benchmarks. Such a battle would recall the “partial-birth abortion” battles of the nineties, in which anti-choicers got to fight on their terms — a very limited procedure that sounded grisly to the average person and put the focus on later abortions, when 98.5 abortions occur before those limits. Bazelon points out that in “three of the five states that recently banned the procedure, no doctor provided late-term abortions anyway.”

But anti-choicers who are going after Planned Parenthood for medical services in Indiana and Kansas, for example, overplay their hands in showing their opposition to women even receiving birth control from facilities that also perform abortions. To any reasonable person, that shows no good-faith interest in actually reducing the number of abortions.

And laws like the South Dakota one, which forces women to wait three days, visit a crisis pregnancy center, and then listen to an ideological script from a doctor, amount to outright bans that, Bazelon says, “in making early abortions more burdensome and costly…take aim at the ordinary version of the procedure that women experience and for which support is greatest.” Planned Parenthood and the ACLU announced today that they would sue South Dakota because “the Act has both the purpose and the effect of severely restricting access to health care, and violates patients’ and physicians’ First Amendment rights against compelled speech and patients’ right to privacy in their personal and medical information,” according to Planned Parenthood’s attorney.

Louisiana is trying to become another front for this battle with the most audacious legislation this side of Ohio “heartbeat bill.” An outright ban on abortion advanced out of a House Committee this week. Rep. John Labruzzo says he’s worked with lawyers from Personhood USA — who managed to get their fetal personhood law on the books ballot in Colorado twice but were roundly defeated after word got out that it would likely ban contraception too.

Just as the Obama administration is pushing back at Indiana for violating federal law by denying Medicaid recipients the right to seek medical care at Planned Parenthood, the Louisiana law would not only blatantly violate the constitution as interpreted by Roe v. Wade — it would deny the state much-needed federal money. According to the Baton Rouge Advocate, a state health agency attorney testified that if the law passes, Louisiana stands to lose about $5 billion in federal health care money because there’s no rape or incest exception. And that’s before the legal bills.

The Reincarnation Of Pro-Life [NYTM]
PPMNS v. Daugaard [ACLU]
Anti-Abortion Bill Clears Committee [The Baton Rouge Advocate]
Earlier: The Roe v. Wade Catch 22

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