Reproductive rights advocates announced a significant slate of challenges to anti-abortion laws on Wednesday, taking aim at major restrictions in three states which advocates say are unconstitutional.
Planned Parenthood, the American Civil Liberties Union, and the Center for Reproductive Rights, a legal advocacy group which argued a landmark abortion case earlier this year, filed three lawsuits in Alaska, Missouri and North Carolina. In Missouri, the groups will challenge a pair of abortion restrictions that have reduced the number of abortion providers to just one. They are taking aim at a similar clinic restriction in Alaska. In North Carolina, they will mount a challenge to a 20-week ban on abortion that has some of the nation’s strictest exceptions.
The two Missouri restrictions are highly similar to laws in Texas that the US supreme court struck down in June. They require abortions to be performed in expensive, hospital-like facilities and require abortion providers to have certain professional relationships with a local hospital.
The supreme court ruled that such restrictions served no medical purpose and were unconstitutional. But similar restrictions remain on the books in several states. In Missouri, where 1.2 million women of reproductive age live, the laws have forced two Planned Parenthood clinics, in Columbia and Kansas City, to stop providing abortions in recent years. The only remaining clinic is located in St Louis, forcing many Missouri women seeking an abortion to travel long distances.
“Because of laws like the ones we are challenging today, for too many women across our country the constitutional right to have an abortion is more theoretical than real,” said Jennifer Dalven, the director of the ACLU’s Reproductive Freedom Project.
But it is the North Carolina challenge that may have the bigger impact on abortion rights nationwide. This is only the second time reproductive rights advocates have challenged a 20-week ban on abortion in federal court – potentially setting the table for these restrictions to go before the supreme court.
North Carolina’s law bans abortions after 20 weeks except in a medical emergency where a woman’s condition is so grave that she requires an abortion immediately. That is stricter than other 20-week bans, which have health exceptions but don’t require there to be a medical emergency.
The bill defines medical emergency as a condition which “so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function” not including mental health.
In their lawsuit, the ACLU, Planned Parenthood and the Center for Reproductive Rights argue that the language essentially forces women having an abortion for health reasons to wait until she becomes gravely ill.
Laws banning abortion several weeks before a fetus is viable outside the womb are increasingly common. Across the country, more than a dozen states ban abortion two weeks before viability on the medically dubious grounds that the fetus can feel pain.
But despite the fact that Roe v Wade prohibits states from banning abortion before the point of viability, most of those laws have not faced a legal challenge. Only Arizona’s 20-week ban, passed in 2012 and struck down permanently over the next two years, was ever the subject of a legal battle in federal court.
The challenge is especially significant now that Donald Trump has been elected president. Trump, in a wholesale embrace of the anti-abortion movement’s top priorities, has promised to sign into law a nationwide ban on abortion at 20 weeks.
One reason is that very few abortion providers have standing for such a challenge. “To challenge these laws, you would have to be actually doing abortions after 20 weeks,” said Priscilla Smith, an abortion rights advocate and a senior fellow at Yale law school. “And there are just so few states where you can obtain abortions at that stage of pregnancy. Despite the anti-abortion world’s focus on post-20-week abortions, they’re very rare.”
But another reason may be that reproductive rights advocates have been hesitant to launch a lawsuit that could reach the supreme court. In the past several decades, many such legal challenges have resulted in the supreme court chipping away at abortion rights.
That changed this summer, when the court ruled 5-to-3 to strike down a set of harsh Texas abortion restrictions. The ruling prohibited states from enacting abortion restrictions based on medically questionable arguments about protecting women’s health. Justice Anthony Kennedy, who is often skeptical of abortion rights, joined the majority.
With Trump potentially empowered to shift the balance of the court rightward, Smith said, reproductive rights advocates are probably facing the friendliest bench possible under the new president.
Courts have struck down early bans on abortion before, including an Arkansas law banning abortion at 12 weeks and a North Dakota law banning abortion at six weeks – before many women realize they are pregnant. In defense of 20-week bans, abortion foes commonly argue that fetuses at that stage of development will feel pain during the procedure. But the evidence is slim. While select studies have found evidence for this, the most recent systematic review of studies on this topic concluded that the fetal nervous system is not developed enough to feel pain until the third trimester.
Still, bans on abortion at 20 weeks occupy fraught emotional territory. Public support for abortion restrictions grows with gestational age, and a substantial portion of Americans are ambivalent or opposed to abortion rights in the second trimester.
Anti-abortion activists place an emphasis on these cases, even though they account for only 1% to 2% of all abortions in the US. Abortion rights advocates argue that many women obtaining later abortions are doing so for health reasons or after discovering a severe or fatal fetal anomaly – although the evidence suggests these are not the majority of cases.
On Wednesday, representatives for Planned Parenthood, the ACLU and the Center for Reproductive Rights said the three lawsuits were the beginning of a spate of legal challenges the groups would mount jointly.
“We are going to fight back state by state and law by law until every person has the right to pursue the life they want,” said Dr Raegan McDonald-Mosley, Planned Parenthood’s chief medical officer.
Planned Parenthood and ACLU mount abortion law challenges in three states
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