Tag Archive: Planned Parenthood v. Casey

Restrictive Abortion Law in Kansas

Kansas is set to enact one of the most restrictive and sweeping anti-abortion laws in the country. The Kansas bill states that life begins at fertilization and imposes a number of new abortion regulations. Specifically, the bill prohibits employees of abortion clinics such as Planned Parenthood from providing sex education in schools; bans tax credits for abortion services; requires health care clinics to give details to women about fetal development and abortion health risks; and bans abortions based solely on the gender of the fetus.

Despite the controversy surrounding the bill, the Kansas House voted ninety to thirty for the bill; hours earlier, the state Senate approved the bill by twenty-eight to ten. Governor Sam Brownback is a strong anti-abortion leader and he is widely expected to sign the bill into law within the next few days. The new restrictions will go into effect on July 1, 2013. Critics of the bill argue that it will be harmful to women. For instance, Kansas Senator David Haley, a Democrat who opposed the bill, argues that advocates of the bill were pursuing a “Taliban-like” course by letting religious views dominate the debate; he further argues that the law would limit women’s ability to make decisions about health care and reproduction decisions. Haley also contends that some health care providers might interpret the provision specifying that life begins at fertilization as a ban on birth control.

In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the United States Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. According to the Kansas City Star editorial board, the Kansas bill is one of the most punitive abortion bills in the country because the bill (1) places additional financial hardships on women; (2) forces doctors to disseminate misleading information; (3) puts schools in a difficult legal position; (4) denies tax breaks to any health care facility affiliated with abortion services; (4) forces physicians to consider a patient’s motives for seeking an abortion due to the gender-specific abortion provision; and (5) the bill is intended to “harass abortion providers, patients and other entitles, like schools, which are caught in the middle.” For these reasons, the Kansas bill would likely be deemed an undue burden on abortion rights.

The Kansas anti-abortion law highlights the growing trend of states either enacting or considering anti-abortion legislation. According to the Guttmacher Institute, there was not a single significant measure adopted by any state to expand access to abortion in 2012. The Guttmacher report notes that nineteen states adopted forty-three new provisions restricting abortion access in 2012. This trend has unmistakably continued in 2013. In recent months, Arkansas legislators enacted a ban on abortions after the twelfth week of pregnancy and lawmakers in North Dakota enacted an anti-abortion law that sets the limit at six weeks.

The Selective-Sex Abortion Ban Debate in the United States

The debate over selective-sex abortion bans remains a contentious issue in state legislatures across the country. On January 16, 2012, Republicans in the Colorado state senate proposed outlawing abortions that are performed based on the sex of the fetus. The proposed legislation defines sex-based abortion as one “undertaken for purposes of eliminating an unborn child of an undesired sex.” Similar legislation has been considered in the past decade on both the national and state level. Arizona, Oklahoma, Pennsylvania, and Illinois have passed statutes banning the procedure in recent years. In May 2012, the U.S. House of Representatives rejected the Prenatal Nondiscrimination Act (PreNDA) that would have imposed fines and prison terms on doctors who perform sex-selective abortions. In a statement opposing the legislation, Representative Diana DeGette, a Democrat from Colorado, said, “I don’t support abortion for gender selection…I don’t know anyone who does. Maybe that’s because there is no problem in this country of abortion for gender selection.”

Supporters of legislative bans on selective-sex abortions argue that there is evidence of the practice in the U.S. among certain ethnic groups from countries where there is a traditional preference for male children, most notably India and China. U.S. Congressman Christopher Smith, a co-sponsor of the PreNDA, argues that the selective-sex abortion procedure “is part of a deliberate plan of population control” and “is the real war on women.” However, critics of the PreNDA argue that conservative Republicans are targeting a non-issue and have effectually created a staw man.

The selective-sex abortion ban debate implicates some serious constitutional and policy concerns. The chief concern is that the legislation would restrict women’s access to abortion by requiring women to disclose why they are choosing abortion. Similarly, there is a concern that the legislation intrudes on a woman’s relationship with her doctor. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the U.S. Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. Requiring women to disclose why they are choosing abortion and the imposition of fines and prison terms on doctors would likely be deemed an undue burden on abortion rights. Furthermore, critics assert that legislation could lead to racial profiling of Asian-American women. The constitutional and policy concerns certainly seem to weigh against the selective-sex abortion bans.

Ohio’s “Heartbeat Bill”

This Valentine’s Day, Republican Ohio State Representative Lynn Wachtmann is expected to introduce the most restrictive anti-abortion bill in the country.  The measure, entitled the “Heartbeat Bill,” would prohibit abortions once there is evidence of a fetal heartbeat.  No consensus exists in the medical community as to when a heartbeat can be detected (some sources state as early as 18 days after conception while more conservative estimates are around 4 weeks).  The time frame advocated in this piece of legislation is clearly in violation of  the third trimester line drawn by the Supreme Court in Roe v. Wade. However, in Planned Parenthood of Southeastern PA v. Casey, the Court specifically rejected the trimester framework stating, “we do not consider [it] to be part of the essential holding of Roe.” Under Casey, states may restrict access to abortion if the restriction does not place an “undue burden” on the woman’s ability to seek an abortion “before the fetus attains viability.”   Because Casey does not discuss whether the right to abortion is still a fundamental right under Roe or the level of scrutiny applied when legislation creates an undue burden on the woman (and considering the current makeup of the Court),  state regulation of abortion may be easier to sustain.   For example, the Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart using a rational basis test once determining that the ban does not impose an undue burden.

Obviously, if this bill were to pass and signed into law, (so far, according to Mother Jones, 40 of 99 state legislators have co-sponsored the bill) it would place a substantial obstacle in the path of the woman.   Doing the math–if a heartbeat is detectable 18 days after conception, a woman would be prohibited from procuring an abortion within one week of missing her regular menstrual cycle.   Considering the weight of the decision, the cost of abortion, the limited access to clinics in this country, the inaccuracy of pregnancy confirmations, and all the other hardships pregnant women face, limiting the time frame to one week is a substantial obstacle in the woman’s path.  Furthermore, a 4-week-old fetus  is clearly not viable.  It is smaller than a grain of rice and looks like this.

The question now is whether “undue burden” will remain the standard.  Justice Thomas, joined by Justice Scalia, stated in his Gonzales concurrence, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, have no basis in the Constitution.”  Justices Roberts and Alito probably agree.  Justice Kennedy, who joined the plurality in Casey and wrote the Gonzales opinion, is the swing vote.

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