By Dave Andrusko
When the Supreme Court declined yesterday to review a lower court decision that a 2012 Arizona law that bans abortion after 18 weeks fetal age is unconstitutional, National Right to Life immediately posted two stories explaining that the High Court’s decision did not affect NRLC model law protecting pain-capable unborn children. (See nrlc.cc/1dnIIUF and nrlc.cc/1dnIPzy.)
“The Pain-Capable Unborn Child Protection Act, as it was first passed in Nebraska in 2010, differs greatly from the Arizona law struck by the 9th Circuit U.S. Court of Appeals, and Monday’s decision by the U.S. Supreme Court to let that decision stand has no impact on these laws protecting from abortion unborn children who can feel pain,” said Mary Spaulding Balch, J.D., National Right to Life director of state legislation. “We remain confident that when the U.S. Supreme Court has the opportunity to review the Nebraska-model Pain-Capable Unborn Child Protection Act, they will affirm the law as constitutional.”
Some media accounts missed the clear distinction but others grasped that Arizona’s “Mother’s Health and Safety Act” is quite different. Certainly pro-abortionists did and the best testimony to that comes out of Texas.
As reported in NRL News Today, the Center for Reproductive Rights and Planned Parenthood sued the state over two provisions of HB 2, a law passed in 2013. The first requires that abortionists have admitting privileges to a hospital within 30 miles of the abortion clinic. The second addresses how chemical abortifacients are administered.
Last week a three-judge panel of The 5th U.S. Circuit Court of Appeals seemed very skeptical of the challenge brought against the provisions.
In the context of the Supreme Court’s decision not to hear a challenge to the 9th Circuit’s decision, what’s most important is that pro-abortionists in Texas never did challenge the state’s Pain-Capable Unborn Child Protection Act. It went into effect last October.
Pro-abortion University of Texas law professor John Robertson told the Dallas Morning News that “it is likely that the Supreme Court rejected the Arizona case now because the 9th Circuit opinion overturning the law is the only appeals decision dealing with the abortion ban.” When another federal appeals court rules, “there might be conflicting opinions that would require Supreme Court review,” Robertson said.
The CRR declined to say Monday whether it is contemplating a second lawsuit to challenge the state’s 20-week abortion ban.
In their story, Los Angeles Times’ reporters David G. Savage and Richard A. Serrano wrote,
“Abortion rights groups are not eager to force the Supreme Court to rule on the issue, fearing justices might ultimately decide to accept new limits. In Texas, for example, abortion rights advocates made a strategic decision not to challenge that state’s new 20-week limit on abortions, similar to the one in Arizona. That’s probably because they worry the U.S. 5th Circuit Court of Appeals in New Orleans would uphold it.”
To which Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union, added, “I don’t take much from this.” She noted, “[T]here are a number of cases percolating in the lower courts, and I would not be surprised if one of them gets there in the next year or two.”
If you want to help unborn babies,
Click here to receive the latest pro-life news and commentary
Likewise, in praising the High Court’s decision, the editorial page of the New York Times wrote
“There may be various reasons the Supreme Court did not take up Arizona’s appeal; as is customary, it did not issue any explanation for its move. Though the result — leaving the Ninth Circuit Court’s sound decision to stand — is undeniably welcome, it did not signal where the Supreme Court’s current members are heading on reproductive rights or whether a majority of justices will protect women’s childbearing decisions against an onslaught of harsh new state restrictions.
The editorial then discussed the aforementioned lawsuit against portions of Texas’s HB 2:
“In an alarming 5-to-4 procedural ruling in November, the court declined to block a Texas law from going into effect as it faces legal challenges and appeals. That law — which requires doctors who perform abortions to have admitting privileges at a nearby hospital — has significantly reduced access to abortion services by forcing eight of 34 abortion clinics in Texas to stop offering the procedure.
“A Supreme Court review of that law could well happen next term. The court’s pass on Monday does not provide any clue about the way it would view that case.”
We know that pro-abortionists in Congress and the state legislatures will falsely argue that the Supreme Court has rejected The Pain-Capable Unborn Child Protection Act. It has not, as the quotes we’ve gleaned from the CRR and the ACLU clearly indicate.
The public is on our side. In a nationwide poll of 1,003 registered voters in March, The Polling Company found that 64% would support a law such as the Pain-Capable Unborn Child Protection Act prohibiting abortion after 20 weeks – when an unborn baby can feel pain – unless the life of the mother is in danger. Only 30% opposed such legislation. Women voters split 63%-31% in support of such a law, and 63% of independent voters supported it.
And that is why National Right to Life will continue to promote this legislation “We will continue to work with our state affiliates to make enactment of the Pain-Capable Unborn Child Protection Act our chief legislative priority in the state legislatures,” Balch said.
“The Pain-Capable Unborn Child Protection Act is National Right to Life’s primary congressional priority,” noted Douglas Johnson, National Right to Life legislative director. It has already passed in the House of Representatives. “It is time for the Senate to take action on the Pain-Capable Unborn Child Protection Act, and we urge Senator Reid to allow the bill to come before the Senate for a vote.”