Weekends and holidays are not “days”


The NY Times reports, to the surprise of no one who has been paying attention, that all these new anti-abortion measures passed by states have made abortion much harder to get. Well they would, wouldn’t they.

A three-year surge in anti-abortion measures in more than half the states has altered the landscape for abortion access, with supporters and opponents agreeing that the new restrictions are shutting some clinics, threatening others and making it far more difficult in many regions to obtain the procedure.

Right. That was the idea, wasn’t it.

The new laws range from the seemingly petty to the profound. South Dakota said that weekends and holidays could not count as part of the existing 72-hour waiting period, meaning that in some circumstances women could be forced to wait six days between their first clinic visit and an abortion.

Ok that’s one I hadn’t heard of. Brilliant. So if a woman needing an abortion has the bad luck to be unable to get an appointment until the Friday before a holiday Monday, she has to wait until the following Friday.

Laws passed last year by Arkansas and North Dakota to ban abortions early in pregnancy, once a fetal heartbeat was detected, were hailed by some as landmarks if quickly rejected by federal courts. But bans on abortion at 20 weeks, also an apparent violation of constitutional doctrine, remain in force in nine states.

In Roe and later decisions, the Supreme Court said that women have a right to an abortion until the fetus is viable outside the womb — at about 24 weeks of pregnancy with current technology — and that any state regulations must not place an “undue burden” on that right.

In 2013 alone, 22 states adopted 70 different restrictions, including late-abortion bans, doctor and clinic regulations, limits on medication abortions and bans on insurance coverage, according to a new report by the Guttmacher Institute, a research group that supports abortion rights.

Well, you see, the meaning of the word “undue” has changed radically over the past 40 years. Also the word “24” and the word “right.”

A dozen states have barred most abortions at 20 weeks of pregnancy, based on a theory of fetal pain that has been rejected by major medical groups. Such laws violate the viability threshold and have been struck down in three states, but proponents hope the Supreme Court will be open to a new standard.

A partial test is expected this month, when the Supreme Court announces whether it will hear Arizona’s appeal to reinstate its 20-week ban, which was overturned by federal courts.

Many legal experts expect the court to decline the case, but this would not affect the status of similar laws in effect in Texas and elsewhere. Still, those on both sides are watching closely because if the court does take it, the basis of four decades of constitutional law on abortion could be upended.

And the laws and rules and shackles and burdens that keep women down could be made tighter and heavier.

The proliferation of state restrictions is recreating a legal patchwork.

“Increasingly, access to abortion depends on where you live,” said Jennifer Dalven, director of the reproductive freedom project at the American Civil Liberties Union.

She added, “That’s what it was like pre-Roe.”

Backward. Marching marching marching backward.

Comments

  1. Pteryxx says

    South Dakota said that weekends and holidays could not count as part of the existing 72-hour waiting period,

    because those silly wimmenz can’t be expected to think about whether they’re reeeeaaaallly really really sure they want an abortion on weekends or holidays.

    Meanwhile,

    A dozen states have barred most abortions at 20 weeks of pregnancy,

    No word on whether pregnant people get weekends and holidays off the advancement of their pregnancies.

  2. says

    A dozen states have barred most abortions at 20 weeks of pregnancy,

    Cruel bastards.
    When the little one’s lack of kidney (note important absence of plural marker) was detected we were already much further along. Those assholes would force a woman to carry a doomed fetus to term, knowing with every kick that she will neither sing this child a lullaby nor teach them to ride a bike.

  3. Gen, Uppity Ingrate and Ilk says

    because those silly wimmenz can’t be expected to think about whether they’re reeeeaaaallly really really sure they want an abortion on weekends or holidays

    Yeah, that pretty much comes right out to say “Fuck you, we’ll make this as impossible as possible for you”

  4. Pierce R. Butler says

    The new laws range from the seemingly petty to the profound.

    Seemingly???

    And apparently the NYT forgot to list the profound one(s?).

  5. says

    There has to be a way to wrap up all of these into a single federally based challenge on the grounds of the de facto nature of the undue burden. If the real world results are women not being allowed to exercise their rights that has to have meaning judicially speaking.

    Unless the system is screwed to the point of needing to be shattered and reassembled like I have been suspecting.

  6. says

    Well, you see, the meaning of the word “undue” has changed radically over the past 40 years.

    And the supreme court has changed into a branch of the church, with catholic leanings.

  7. screechymonkey says

    Brony@5, I’m not sure what it is you’re asking for.

    It would be hugely problematic to file one federal lawsuit to simultaneously challenge the laws of thirty-some states. Aside from the fact that these laws aren’t all identical, and the impact is different depending on the geography and medical establishment of each state, you have to have a plaintiff with standing to challenge each of them. A woman who lives in Texas may have standing to challenge Texas’s law, but how is she harmed by Mississippi’s? Then there’s the venue and jurisdictional issues with requiring Texas to defend itself in a federal court in Mississippi, or vice versa.

    The way this will shake out is similar to gay marriage court cases. The Supreme Court might not take the first case that it’s asked to take in this area, or the second, or the third…. but eventually it will have to step in to resolve the conflicting rulings of the circuit courts of appeal. The Supreme Court might consolidate two or more cases for briefing and oral argument,* and then issue one opinion or separate opinions, or it might just hear and decide one and then remand the others to be reheard by the courts of appeal based on the new decision.

    *-In writing this I remembered that there was a “companion case” to Roe v. Wade, called Doe v. Bolton. I had forgotten what the issues were there, so I looked it up and ironically it involved a Georgia statute that required, among other things, that abortions be performed only in accredited hospitals…. the more things change, the more they stay the same.

  8. says

    screechymonkey @ 7

    I’m not a lawyer, I’m mulling over some concepts that I have been exposed to and I know that is risky.

    What I am looking for is a way to cut to the heart of the problem and stop it as fast as possible. It’s the reason that I used the words “de facto”. These laws are collectively preventing women from exercising their right to an abortion as a matter of fact. The reasons for the laws become meaningless in the face of the real world fact that they are preventing people from exercising their rights. At some point the intentions don’t matter from a constitutional perspective.

    My history in this area is a little rusty but were there not a bunch of different laws preventing blacks from voting earlier last century? A bunch of different laws that made it difficult to deal with them individually?

    Another application similar to this is when you consider the “Lemon test” that is used to detect an unconstitutional law with respect to religion.
    http://candst.tripod.com/tnppage/eclause2.htm
    First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”

    The …it’s principle or primary effect…” is the sort of legal concept that I am thinking about. At some point the stated intentions of the people passing these laws does not fucking matter in a legal context. Why should we have to deal with lots of laws endlessly?

  9. screechymonkey says

    Brony @8:

    The …it’s principle or primary effect…” is the sort of legal concept that I am thinking about. At some point the stated intentions of the people passing these laws does not fucking matter in a legal context. Why should we have to deal with lots of laws endlessly?

    The Establishment Clause cases are a bit of an exception in that generally speaking, the “intent” of a legislature is irrelevant to a law’s constitutionality (at least in theory). A law that was passed with the purest of intentions still gets struck down if it’s an unjustifiable infringement of constitutional rights, and a law that was passed with the nastiest of intentions gets upheld if it isn’t.

    Courts will consider whether a law advances a legitimate government interest, but that’s not quite the same as what the intent of the lawmakers was.

    And yes, the courts consider the actual, practical effects of a law — if the evidence shows that a particular law has the effect of burdening a constitutional right, that’s very relevant even if “on its face” it says nothing about that right.

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