Legal Docket: Pro-life legislation

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 24th of June, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. We are in the final week of this Supreme Court session. Twelve decisions remain to be handed down probably over a couple of days this week, including this morning. We will have analysis of those tomorrow.

A somewhat unusual Friday release came with four more opinions.

First (Flowers v Mississippi), the case of the man tried six times in Mississippi by the same prosecutor for the same murders. Curtis Flowers is black and the prosecutor is white and he has a history of racial bias in jury selection. That is what is alleged to have happened in the sixth jury trial that put Flowers on death row. By a vote of 7-2, the justices dismissed Flowers’s conviction and death sentence. The case is now remanded for a seventh trial.

EICHER: Next (North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust), a unanimous win for a North Carolina woman in a tax case.

Kimberly Rice Kaestner contested her state’s million-dollar tax bill assessed against her family trust, which is based in New York. No money from the trust had yet been distributed to Kaestner, but North Carolina argued her mere residence there was sufficient legal cause to impose the tax.

The high court firmly said, not so. Kaestner is due a refund.

REICHARD: Third (Rehaif v United States), an opinion that the government must prove intent in gun-possession cases. Hamid Rahaif’s student visa had expired when he shot guns at a firing range. That broke a law barring gun possession for people in the country illegally.

But by a 7-2 vote, the case is remanded to put the burden of proof on the government to prove these two things: one, that Rehaif had knowledge of his illegal status, and, two, that he had knowledge of the law barring gun possession.

EICHER: Finally (Knick v Township of Scott), a 5-4 ruling in favor of a woman in a property dispute. The town Rosemary Knick lived in required her to allow public access to an old cemetery found on her property.

She argued that by requiring access, the government effectively took her property without just compensation. But the legal question was whether she could take her case directly to federal court, without going through state court first. The five conservative justices said yes, she could.

REICHARD: Well, now we turn to today’s topic suggested by listener Russell Board who lives in Japan. He suggested a recap of recent legislation in the United States dealing with protections for the unborn.

And he wonders in particular how these protection laws will fare in the courts, as they no doubt face legal challenge.

EICHER: Right. And they are designed with legal challenge in mind. Mr. Board suggests an important issue, because 2019 has been a banner year for pro-life legislation.

Let’s start with Ohio. Here’s Governor Mike DeWine back in April. He’s in a public signing ceremony for a law that bans abortion after doctors can detect a fetal heartbeat. Medically, that’s possible at around six weeks’ gestation.

DEWINE: Government’s role should be to protect life from the beginning to the end … The signing of this bill today is consistent with that respect for life and the imperative to protect those who cannot protect themselves.

REICHARD: These heartbeat bills are popular in pro-life states. But courts in Iowa, Kentucky, and Mississippi struck down similar legislation there. Similar bills in Missouri and Louisiana face legal challenges too.

Here’s Governor Brian Kemp signing Georgia’s heartbeat bill last month:

KEMP: The Life Act is very simple but also very powerful. A declaration that all life has value. That all life matters. And that all life is worthy of protection…I realize that some may challenge it in a court of law. But our job is to do what is right, not what is easy… [clapping]

These “heartbeat” laws that prohibit abortion after a heartbeat is detected may have various exceptions— depending on the state. For example, for rape or incest, if the woman’s life is endangered or if the pregnancy is deemed medically futile. Some do not allow exceptions for rape or incest.  

Indiana and North Dakota protect babies who make it to the second trimester.

Arkansas and Utah ban abortion after the 18-week point.

Planned Parenthood and the ACLU almost immediately challenged each one of these protective laws in court. And on May 21, pro-abortion activists rallied near the Supreme Court to listen to motivational speeches.

This is Senate Minority Leader Chuck Schumer:

SCHUMER: Those who have planned to repeal Roe and take away a woman’s right to choose think that they can now win. From Alabama to Missouri to Texas and beyond Republican legislatures are waging a war to unravel a woman’s fundamental rights. They are responsible for 300 newly proposed restrictions. We are here to send these folks a message. Not on our watch!

Leana Wen is president of Planned Parenthood, the largest provider of abortions in the country:

WEN: So here’s our message to you, President Trump…we have had enough of you, all you politicians who know nothing about people’s bodies, that you’re making decisions for patients about their health!

The pro-abortion message is resonating in some states—New York, for example. That state passed a law allowing abortion at any point, extending even to a baby who survives an abortion attempt to be allowed to linger and then die without medical intervention. Earlier this month, Illinois repealed its ban on partial-birth abortions and other protections.

Vermont, Rhode Island, Nevada, and New Mexico are also busy removing protections for the unborn. Among them, reinstating partial-birth abortion, removing fetal homicide laws that count the unborn child as a person if he or she died after an assault on the mother; repealing safeguards like informed consent and parental consent.

I spoke to Katie Glenn, government affairs counsel for Americans United for Life. She recently testified before the legislature in Massachusetts against a bill stripping protections from the unborn.

There, she says, lawmakers are changing definitions:

GLENN: Right now they have very plain language definitions of pregnant woman and unborn child, and they’re really pulling the humanity out of those definitions and changing it to, I believe it’s … “a person with a fetal implantation” …—not saying what it is! We all know what a pregnant woman is. … why is it that OB-GYNs have two patients but abortionists have one patient? What is the difference other than the desirability of that second life?

I also called up Eric Scheidler. He’s the executive director of the Pro Life Action League based in Chicago. And I asked him for some perspective on the overall picture for abortion legislation.

SCHEIDLER: I’ve never seen anything like what we’ve seen this year, 2019, on both sides…

So at the same time that we have seen some states like Alabama, Georgia, Ohio, Missouri, and Kentucky fighting hard to, um, protect the lives of unborn children, there are states that are going exactly the opposite direction. And there’s a little bit of a, an action-reaction thing happening here.

Behind what seems to be a sudden rush of legislation one way or the other is a pro-life movement that’s been toiling away for decades.

After the Supreme Court reaffirmed the right to an abortion in Casey vs. Planned Parenthood in 1992, pro-lifers took stock of their chances to overturn it. Things looked entrenched for awhile.

So they changed tactics: instead of a frontal attack on Roe vs. Wade, chip away at it.

SCHEIDLER: The goal of these types of bills is to really challenge the standards by which the Supreme Court has said that states have an interest in protecting life in the womb. To really push back against the three trimesters structure that was created by the court in Roe vs. Wade and Doe vs. Bolton back in 1973.

These bills push back on gestational limits, the actual procedure used to end the unborn child’s life, who pays for it, reporting requirements, credentials required for abortionists, conscience protections, among others.

Those laws are passing because the political landscape has changed: a president who leans pro-life; a Supreme Court with a majority of conservative justices; unflagging determination by disparate pro-life groups.

As the opportunities for change arose, pro-lifers were ready for a more direct challenge to Roe.

SCHEIDLER: The measure passed in Alabama, which is a direct challenge to the entire logic of Roe vs. Wade because it says the child will be considered deserving of state protection from the moment of conception. So the state has a complete interest in trying to protect these children. That’s a much more frontal attack on Roe…

These bills are, are helpful for us as a movement because they provide a tremendous educational opportunity, especially with regard to the heartbeat. So few people realize how very early in pregnancy that heart begins to beat… Unfortunately, these bills will, of course, be enjoined by the courts and so they won’t actually be enacted to save any lives until we have a change in that Supreme Court ruling.

And that’s what’s behind these bold legislative moves across the country: to get a case ripe enough for the Supreme Court to take it up.  

But the pro-choice side has a systemic advantage in the court of public opinion—highly sympathetic mainstream media coverage, as well as social-media gatekeepers who shut down pro-life voices.

SCHEIDLER: These are all very concerning developments as well because at the end of the day, the pro-life movement really relies on being able to share our story and to have conversations with people.

The pro-choice side often shuts men down in the abortion debate. I had to ask Scheidler about that.

SCHEIDLER: I cut through all that propaganda and simply say that as a human being, the fate of other human beings is my concern that, you know, if men’s voices were really that irrelevant, why are we celebrating Roe vs. Wade, a ruling of seven men? I mean it’s a tremendous hypocrisy to pretend that men don’t have a role here.

So, to answer listener Russell Board’s question about any of this legislation surviving judicial review?

I’ll give the unsatisfying lawyer’s answer: it depends.

One of these legal challenges has to make it to the Supreme Court.

And that’s a process. First, a trial where evidence about the humanity of the unborn person will be heard and about hardships to women who carry an unwanted child.

Those lower court judges are bound by existing law, and so will have to find the state law unconstitutional if it restricts abortion. Then that case will go to the appeals court, which will also be bound by law. Those judges have little latitude to decide otherwise.

Only then will the case be ready to ask the U.S. Supreme Court to review it. And even if that happens, the high court may decide it won’t hear the case.

So, the prospects? It’s impossible to say for certain, because at the end of the day, there’s a human element to it, and it’s whatever five or more Supreme Court justices think about a given case.

And that’s this week’s Legal Docket.

(AP Photo/Jeff Roberson, File) In this June 4, 2019, file photo, anti-abortion advocates gather outside the Planned Parenthood clinic in St. Louis. Missouri.

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