Abortion restrictions failing this year in court challenges

Andrew Harris

Bloomberg News

Published: Tuesday, Aug. 20 2013 12:00 a.m. MDT

Drawing conclusions about trends should await final rulings on the merits of cases challenging state restrictions and subsequent appeals, Lamontagne, of Americans United for Life, said said in an e-mail. "Trial courts apply the law as they understand it to be, and they are not always correct," he said.

Peter Rofes, a Marquette University law professor in Milwaukee, said there's a positive side to investing "the time, the effort, the money to engage the challenge" of proposing laws almost certain to prompt lawsuits they may not survive.

"It's a victory for those who seek to keep it in the nation's consciousness," he said.

Rofes predicted the federal cases will rise at least to the regional appeals courts of appeal. Wisconsin Attorney General J.B. Van Hollen has filed papers signaling his intention to appeal an Aug. 2 ruling by a U.S. judge temporarily blocking the state's hospital affiliate law.

Judges, the Arkansas law professor, agreed.

"I don't think the current court is inclined to revisit Roe," he said. "Until there's a one-justice switch, I think it's going to rest in the lower courts."

Chief Justice John Roberts and associate justices Antonin Scalia, Clarence Thomas and Samuel Alito are perceived as the most likely to vote to revisit the issue and perhaps alter the status quo, Rofes said.

Justices Anthony Kennedy, Steven Breyer, Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan are widely viewed as unwilling to fundamentally alter the law, he said.

National Right to Life is pushing for a different kind of legislation, barring abortion at the 20th week of a pregnancy on the ground that a fetus at that point can feel pain.

Such measures have been passed in the U.S. House of Representatives and 10 states, most recently Texas.

"Pain is a subjective experience, no matter who is experiencing it," Cassing Hammond, a professor at Northwestern University in Chicago and a doctor of obstetrics and gynecology, said in a phone interview. Neural pathways that transmit that sensation and cerebral development needed to process it as pain typically don't fully develop in a fetus until at least the 23rd week of a pregnancy, he said, and possibly not until the 29th.

"We simply do not have evidence that those pathways are in place" at 20 weeks, he said, even if neuroscience has advanced since Roe. "These bans do not make good scientific sense."

Hammond served as chairman of the National Abortion Federation's board from 2010 to 2012. He said his views are "not about politics. It's about providing safe care to patients."

Linton of the Thomas More Society said of the pre-viability fetal-pain laws, "I would like to see these bills upheld. I just don't think they will be."

Balch of National Right to Life said the aim is to persuade the Supreme Court to find a compelling state interest in protecting the life of a child that can feel pain, based on science that wasn't available in 1973.

"It hasn't been before the court before, and we would welcome that challenge," she said.

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