Monday, January 28, 2013

Arkansas Fetal Heartbeat Law

Arkansas is considering passing a law that would ban abortions at any time after a fetal heartbeat is detected. Unquestionably, this would be unconstitutional under Planned Parenthood v Casey which says that anything that has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," is unconstitutional.

Viability is defined as the age at which the fetus is capable of life outside the womb with or without artificial support.

A few states have tried to pass similar bills. The strategy seems to be to pass a bill, have it challenged in court, and then launch an all out assault on Roe v Wade.

Supporters of this bill must justify the expenditure of considerable state funds defending it when a favorable outcome is uncertain at best. Only the United States Supreme Court can undo Roe so that, unless the case gets to the Supreme Court AND it turns out in the state's favor, passing the bill would be quixotic.

I don't think that the current make up of the Supreme Court would uphold this kind of law if it meant undoing Roe. There are four solid liberal, pro-roe votes (Kagan, Ginsburg, Sotomayor, Breyer), three solid conservative, anti-roe votes (Scalia, Alito, Thomas) and two moderate votes (Kennedy, Roberts.) Even if we assume that Roberts would vote with the anti-Roe side, Kennedy is unlikely to do so. He co-authored the Casey opinion that upheld the "central tenets" of Roe: that the constitution protected a women's right to choose and that the government could not place a substantial obstacle in her path.So that leaves a 5-4 majority against these kinds of laws.