“Ah, There’s Good News Tonight….” No doubt Gabriel Heatter, that radio announcer of yesteryear, would have turned to his favorite phrase in introducing this news story:
Politico reports that the Center for Reproductive Rights (“CRR”) – that two-fisted fighter for the constitutional right to “terminate” one’s own children before they’re born – just can’t get around to filing legal challenges against all the new red-state restrictions on abortion that have swamped state houses from coast to coast.
Politico’s article, “The big abortion fight that isn’t,” comments that although “Republican legislatures across the country are passing tough new anti-abortion laws” that abortion advocates believe are unconstitutional, “[T]hey’re not rushing to court to stop them.” This is in spite of ground-breaking new legislation banning abortions after 20 weeks based on scientific evidence that infants in the womb feel pain as early as 18 weeks, which has been passed in Nebraska, Idaho and Kansas and is under consideration in half a dozen other states.
Other states are falling over themselves to pass ultrasound requirements, full informed consent mandates and, most famously, a three-day consent period South Dakota recently passed to require women considering abortion to consult with a pregnancy resource center before going through with it – because a state task force found that the state’s sole abortion provider, Planned Parenthood, misleads women about the true nature of abortion and its consequences.
In times past, CRR and its doppelganger, Planned Parenthood, have parachuted their legal teams into virtually every state that has had the audacity to raise its head against Roe v. Wade’s regime of “reproductive access” for all, usually winning a quick injunction and a slap across the forehead from a dutiful federal judge, with a six-figure bill for the abortion lobby’s lawyers to add injury to insult.
Then, in 2007, everything changed. The Supreme Court ruled in Gonzales v. Carhart, the case that upheld the federal ban on the barbaric practice of partial-birth abortion, that abortion cases had to follow the same jurisprudential rules as all other cases are bound to, signaling an end to the so-called “abortion distortion” bemoaned by several of the Justices over the years. Most importantly, that meant that “facial challenges” – those that attacked the constitutionality of an abortion restriction as written, before it was interpreted and implemented and without regard to the circumstances of its actual application – were now “disfavored,” the Court said. Case dismissed – from now on, CRR and Planned Parenthood would have to come into court with real women who needed abortion but couldn’t get it because of the challenged legal restriction, not speculation from Planned Parenthood’s stable of sociologist “experts” who have spent their careers studying, for example, how far women are willing to drive before getting an abortion becomes too much of an “undue burden” for them to bother with.
Oddly enough, four years later, the federal courts are still waiting; CRR and Planned Parenthood have been unable to muster a single “as-applied” challenge to the Partial-Birth Abortion Act.
Politico’s Sarah Kliff reports that CRR says Nebraska’s fetal pain law “ranks lower down in its priorities since it only regulates a small number of procedures that occur later in the pregnancy.” A new challenge to Roe? Yawn. “We don’t jump just because the anti-choice movement jumps,” says CRR’s president Nancy Northrup.
Why won’t the big dog get off the porch to go after every hound that’s barking at Roe, like it did when it was younger? One reason may be dwindling resources, since Planned Parenthood had substantial reductions in force in the recent recession, and both CRR and Planned Parenthood have recently lost their lead trial lawyers. This has prompted Planned Parenthood to ask for more time to prepare for a critical argument before the Arizona Court of Appeals in a case seeking to declare unconstitutional laws protecting health care providers’ rights of conscience and prohibiting Planned Parenthood from having nurses perform surgical abortions. Perhaps because of lack of resources, or perhaps because fewer resources can’t meet massive new demand, CRR has changed its tune:
“We’re focused on pursuing cases that ensure that women have access to all abortion services,” Northrup says. “They’re trying to move the agenda to a small percentage of cases, but we’re not fighting on their turf.”
“We’re not fighting on their turf.” The abortion lobby has quietly shifted to defense in the battle to overturn Roe v. Wade.
According to research on the impact state abortion restrictions have on the abortion rate conducted by Dr. Michael New, these laws have driven down the abortion rate nationally by almost one-third in the last twenty years. But state laws have even more impact, he found, when they go unchallenged in court, perhaps because laws have a tutelary function. In the words of Justice Brandeis more than eighty years ago, “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”
By ignoring a tidal wave of legal authority that insists that unborn children are valuable and worthy of legal protection, CRR and Planned Parenthood may be setting themselves up to lose the war of public support, even if they win the next battle in the courts. And because law follows public opinion, Roe cannot stand when the ground of public support for – or acquiescence in – abortion on demand has eroded away underneath it.
LifeNews.com Note: Steve Aden is the Senior Legal Counsel for the Alliance Defense Fund.