{"id":53250,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/ability-fl-prod.internetbrands.com\/ability-legal\/supreme\/legal-commentary\/the-battle-over-abortion-and-contraception-part-one-how-its-playing-out-in-the-states-and-in-the-supreme-court.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-battle-over-abortion-and-contraception-part-one-how-its-playing-out-in-the-states-and-in-the-supreme-court","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-battle-over-abortion-and-contraception-part-one-how-its-playing-out-in-the-states-and-in-the-supreme-court.html","title":{"rendered":"The Battle over Abortion and Contraception, Part One How It’s Playing Out in the States and in the Supreme Court"},"content":{"rendered":"\n
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<\/a><\/td>\n

The Battle over Abortion and Contraception, Part One: How It’s Playing Out in the States and in the Supreme Court<\/h1><\/td>\n <\/tr>\n

By ELAINE CASSEL<\/h2><\/a><\/td>\n <\/tr>\n

Tuesday, Mar. 14, 2006<\/td>\n\n <\/tr>\n <\/table>\n

Last week, the governor of South Dakota — a state with only one abortion facility and the fewest abortions in the country — signed a law banning all abortions except when the life of the mother (or serious risk of substantial and irreversible impairment of a major bodily function) is at stake. The South Dakota law states that human life begins at fertilization and that any termination of that “unborn human being” outside the legal safe harbor is punishable as a felony. Other states — including Mississippi, where abortions are almost as rare as they are in South Dakota–have similar laws pending. <\/p>

In the old days, cases got into court because real people suffered real harm. Laws were passed because real people had real issues. But these laws are being passed for a different reason: the states have a religious agenda, and they hope the Supreme Court – with the addition of Chief Justice Roberts and Justice Alito – will be friendlier to their claims. <\/p> \n\n\n

Will it? That depends, in large part, on Justice Kennedy – as I will explain. I will also offer an argument that may help to convince Justice Kennedy, in these cases, to vote against some of the more noxious state anti-abortion laws. <\/p>

Abortion Rights Cases Before the <\/b>Roberts Court<\/b>: Recent Decisions<\/b><\/p>

On January 18, in Ayotte v. Planned Parenthood of Northern New England<\/i><\/a>,<\/i> the Roberts Court declined to invalidate a Vermont abortion statute in its entirety because it lacked a health-of-the-mother exception to the requirement of minor parental consent. The unanimous decision was written by Justice Sandra Day O’Connor – then still on the Court. In the end, the solution the Court reached – remanding the case to the state so the legislature could add such an exception-pleased anti-abortion forces because the statute stands but for that flaw. Chief Justice Roberts -no fan of abortion rights — strongly favored the remand solution during oral argument in the case. <\/p>

On February 28, the new Roberts Court decided the case of Scheidler v. National Organization of Women<\/i><\/a>. <\/i>Although by then, Justice Samuel Alito had replaced O’Connor on the Court, he did not play a part in the consideration or decision of the case. The decision – written by Justice Stephen Breyer — was unanimous, but, in my view, wrong. In Scheidler<\/i>, the Court declined to apply federal anti-racketeering and anti-extortion laws to anti-abortion protestors – such as the Army of God and other extremists — who threaten abortion clinics with physical violence and intimidation. These laws are written broadly, to target patterns of interstate violence and coercion; they should have been held applicable here. <\/p>

Now, powerless to call upon these federal laws, abortion clinics are left to try to obtain injunctions limiting protesters’ activities under the 1994 Freedom of Access to Clinic Entrances Act. Unfortunately, though, this law is virtually useless. The Army of God and other anti-abortion activists don’t announce their intentions to block access at a given time and place, so going to court beforehand is simply not an option. <\/p>

No wonder, then, that anti-abortion forces claim that Scheidler <\/i>was a huge victory for them. We can expect patients and staff in clinics to continue to fear for their lives and safety.<\/p> Column continues below \u2193<\/a>\n\n