Undue Burdens: Legislation with an Unconstitutional Purpose

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

On January 21, 2017, two and a half million people gathered across the world to stand, speak, and march for the rights of women.[1] These women were advocating for many rights, among them, reproductive freedom. But another, much less public, march began in November and continues still today.[2] Since the election of President Donald Trump, women across the United States have been visiting their gynecologists or Planned Parenthood to request long-term contraceptive solutions.[3] Triggered by an administration that is hostile to abortion rights[4] and the Affordable Care Act,[5] fear for the loss of control of their reproductive rights has driven the recent choices of many women across the country. Unfortunately, while women are taking necessary precautions to refrain from getting pregnant, the Trump administration’s rhetoric surrounding abortion has emboldened states.[6] Many of these states have proposed and enacted bills that place undue burdens on the right of a woman to choose to have an abortion.[7] Some are even so blatantly contrary to past Supreme Court cases that the motivation behind these bills is concerning. The bulk of this article will discuss the Supreme Court precedent on abortion and how these proposed and enacted state bills are unconstitutional.

SCOTUS History on the Right to an Abortion

On January 22, 1973, the Supreme Court handed down the monumental decision Roe v. Wade. Roe recognized that the constitutional right to privacy extends to a woman’s right to make her own personal medical decisions, specifically the decision to have an abortion without undue interference.[8] This right is not absolute and must be balanced against the states’ interests in regulating abortions to protect the health of the mother and the potential for life.[9] As such, the Court noted that the state’s interests become sufficiently compelling at a certain point in the pregnancy to allow regulations to be put in place to govern the abortion decision.[10]

Almost twenty years later, the Supreme Court revisited the right to abort in Planned Parenthood v. Casey.[11] Reaffirming the central holding in Roe, the Court reminded the states that there are limits to on interference with “a person’s most basic decisions about family and parenthood, as well as bodily integrity.”[12] Casey established a new test to evaluate state regulations on the right to have an abortion. This standard prohibits regulations that impose an “undue burden” on a woman’s right to seek an abortion. The Court noted that only where a regulation has a purpose or effect of placing substantial obstacle in the path of the woman “does the . . . [s]tate reach into the heart of the liberty protected by the Due Process Clause.”[13]

At issue in Casey were five provisions of the Pennsylvania Abortion Control Act of 1982.[14] These provisions required, among other things, that a married woman seeking an abortion must sign a statement indicating that she has notified her husband.[15] Alternatively, the provision allowed the married woman, in lieu of notifying her husband, to sign a statement certifying that: (1) her husband is not the man who impregnated her; (2) her husband could not be located; (3) the pregnancy is the result of spousal sexual assault that she has reported; or (4) the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.[16] If a physician performed the abortion without one of these two written statements, the doctor’s license would be revoked and they would be liable to the husband for damages.[17]

Finding the other four provisions not unduly burdensome on the woman’s right to seek an abortion, the Court only struck down the spousal notification requirement. Looking to an earlier case, the Court reaffirmed its holding that “the State cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”[18] The Court held that the spousal notification requirement was “tantamount to [a] veto” and was unconstitutional.[19] The Court did not ignore the husband’s interest in the life of his child, but simply recognized that empowering the husband with authority over his wife, similar to a parent over a child, was problematic, especially for a woman who reasonably feared the consequences of notifying her husband that she was pregnant.[20] This holding has remained untouched since 1992 and its relevancy has not diminished.

State Legislation

In the middle of an extremely publicized national election, local politics went under the radar. Many states took this opportunity to enact legislation that not only poses a risk to the health and safety of women, but is plainly unconstitutional in light of Planned Parenthood v. Casey and Whole Women’s Health v. Hellerstedt.[21]

On January 9, 2017, Oklahoma State Representative Justin Humphrey introduced a bill, HB 1441, that was approved by the state House Public Health Committee on February 14, 2017.[22] House Bill 1441 demands that “[n]o abortion shall be performed in this state without the written informed consent of the father of the baby.”[23] The bill requires a woman to provide the identity of the father of the baby to her physician when seeking to abort her pregnancy.[24] It further states that if the person so identified as the father contests his paternity, he may demand that a test be performed to verify his paternity of the child.[25] The bill does include exceptions for a pregnancy that is the result of rape, incest, or in cases where the physician determines that carrying the baby places the woman’s life in danger.[26] If approved by both houses of the Oklahoma legislature, the bill would take effect on November 1, 2017.[27]

However, the threat is not restricted to Oklahoma. At least fourteen other states introduced anti-abortion legislation in January 2017.[28] Many states continue to push for bills reflecting the “personhood” movement, based on the belief that life begins at conception.[29] Other states, such as Arizona and Missouri, enacted regulations on healthcare facilities, known as “Targeted Restrictions on Abortion Providers” or TRAP laws.[30] These regulations purport to make abortions safer, but as shown in Whole Women’s Health v. Hellerstedt, there is little to no evidence that the regulations are needed.[31] Additionally, a new Arkansas law grants a woman’s family members or healthcare provider a private right of action against an abortion provider to stop an abortion.[32] These laws cannot withstand constitutional scrutiny as they place substantial obstacles in the way of a woman’s right to seek an abortion.

Unavoidably and Unequivocally Unconstitutional

In Planned Parenthood v. Casey, the Supreme Court prohibited a measure that required a married woman to notify her spouse before an abortion could be performed. The Court emphasized the husband’s interests and concern for his child, but ruled that this concern could not act as a veto against the woman’s decision. Oklahoma HB 1441 is directly contrary to this holding, and even attempts to expand on the unconstitutional Pennsylvania provision. This bill forces every woman to notify and obtain informed consent from any father, not just in the case of a marriage. It is unavoidably unconstitutional as it places an undue burden on the woman’s abortion right. The bill’s sponsor, in an interview with The Oklahoman, noted “[m]y bill would stop an abortion if a father does not agree to the abortion.” This bill gives the father a veto power over the woman and her body. This is unequivocally unconstitutional.

Furthermore, the bill places an undue burden on the woman by stalling the abortion for a paternity test. After eight weeks into a pregnancy, the procedure is extremely invasive into the woman’s body. To allow a man to force a woman to undergo this procedure is an undue burden on her right to have an abortion.

Ignorant to the Ripple Effect

As states continue to enact legislation to effectively prohibit women from seeking abortions, it is worth noting that many seem willfully blind to the effects that their actions have on the health and safety of these women and their families. Several states in the United States have enacted “trigger laws” in hopes and in preparation for the overturning of Roe v. Wade. These laws would completely ban abortion in their states and take immediate effect. Many of these states already lack an abortion provider in 90-100% of their counties.[33] One of the states’ reasoning for enacting regulation after regulation on abortion is the state’s concern for the health and safety of the mother. Yet, statistics show that illegal and heavily regulated abortion only leads to unsafe and extremely dangerous abortions.

Additionally, some of these states are hostile to a child once it is born. Today, half of abortions sought are by women below the federal poverty level.[34] The “Family Cap” was introduced in the early 1990s and denies a child welfare assistance if, when the mother was pregnant or gave birth, she was receiving benefits from the state or federal government. In a bill summary for HB 1441, Representative Humphrey noted that the bill would have no fiscal impact on the state. Notably, this statement remains true because Oklahoma is one of the many states that still has a family cap. States, such as Oklahoma, effectively force a woman to have a child and then turn a blind eye to the child once it is born into a family that cannot adequately support it. Policies that allow for such a result cannot truly have the health and safety of the families in mind.

Conclusion

States are becoming increasingly bold when it comes to regulations on a woman’s right to an abortion. Some are writing language so contrary to constitutional precedent that the motivation behind the bills raise grave concerns. With a Presidential administration that expressed deep disdain for Roe v. Wade, attention to local politics is urgent. After a wave of phone calls, faxes, and letters in light of the cabinet nominees, it is now time to turn to state governments. When HB 1441 makes it to the House and Senate floors in Oklahoma, activists must compel their friends, family, and colleagues to raise their voices for the rights of women. As new legislation arises and the Supreme Court gains a ninth member, it seems the march for women’s rights has only begun.

[1] Heidi Przybyla & Fredreka Schouten, At 2.6 Million Strong, Women’s Marches Crush Expectations, USA Today (2017), http://www.usatoday.com/story/news/politics/2017/01/21/womens-march-aims-start-movement-trump-inauguration/96864158/.

[2] Lisa Bonos, The IUD Rush: Why Women are Seeking out Birth Control that can Outlast a Presidency, The Washington Post (2017), https://www.washingtonpost.com/news/soloish/wp/2017/02/07/why-women-are-seeking-out-birth-control-that-can-outlast-a-presidency/?utm_term=.01063b4c3bde.

[3] Id.

[4] Rebecca Harrington & Sonam Sheth, Here’s Where Trump Stands on Abortion and Other Women’s Health Issues, Business Insider (2016), http://www.businessinsider.com/donald-trump-abortion-womens-health-platforms-positions-2016-11.

[5] Bonos, supra note 2.

[6] Julie Zauzmer & Sarah Bailey, March for Life: Pence Speaks as Thousands Assemble at Washington Monument, The Washington Post (2017), https://www.washingtonpost.com/local/march-for-life-thousands-assemble-at-washington-monument/2017/01/27/7d880d52-e40a-11e6-ba11-63c4b4fb5a63_story.html?utm_term=.0373a8f99da4.

[7] Lisa Ryan, A New Arkansas Law Could Allow Fathers to Sue to Block Abortions, The Cut (2017), http://nymag.com/thecut/2017/02/spouses-can-block-abortions-under-new-arkansas-law.html; see also Sandhya Somashekhar & Amy Wang, Lawmaker Who Called Pregnant Women a ‘Host’ Pushes Bill Requiring Fathers to Approve Abortion, The Washington Post (2017), https://www.washingtonpost.com/news/post-nation/wp/2017/02/14/oklahoma-bill-would-require-father-of-fetus-to-approve-abortion/?utm_term=.de5ac2623d6a.

[8] Roe v. Wade, 410 U.S. 113 (1973).

[9] Id. at 154.

[10] Id.

[11] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[12] Id. at 849.

[13] Id. at 874.

[14] Id. at 833.

[15] Casey, 505 U.S. at 833.

[16] Id. at 887.

[17] Id. at 887-88.

[18] Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 69 (1976).

[19] Casey, 505 U.S. at 897.

[20] Id. at 898.

[21] 579 U.S. __ (2016).

[22] Public health and safety; prohibiting abortion to be performed without consent of the father; effective date, H.B. 1441, 56th. Cong. (2017).

[23] Id. at § 1(A).

[24] H.B. 1441 at § 2(B).

[25] Id.

[26] H.B. 1441 at § 1(D).

[27] H.B. 1441 at § 2.

[28] Olivia Becker, At Least 46 Anti-Abortion Bills are Already in Front of State Legislators, VICE News (2017) https://news.vice.com/story/at-least-46-anti-abortion-bills-are-already-in-front-of-state-legislatures-in-2017.

[29] Id.

[30] Id.

[31] 579 U.S. __ (2016) (holding that there was no evidence to support the assertion these regulations would make abortions safer, but instead placed substantial burdens on a woman’s ability to choose to have an abortion).

[32] Abortion—Unborn Child Protection from Dismemberment, 2017 Arkansas Laws Act 45 (H.B. 1032) (allowing a woman’s husband, her parents, or her healthcare provider to seek an injunction to stop the abortion).

[33] Abortion Clinics: Percentage of Counties Without a Known Clinic, Guttmacher Institute (2016), https://data.guttmacher.org/states/map?topics=58&dataset=data.

[34] Abortion Patients are Disproportionately Poor and Low Income, Guttmacher Institute (2016), https://www.guttmacher.org/infographic/2016/abortion-patients-are-disproportionately-poor-and-low-income.

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