Legal tactics are critical to future of state 20-week abortion bans: law professor
WASHINGTON, D.C., March 18, 2014 (LifeSiteNews.com) – Pro-life lawyer and professor Randy Beck says legal tactics are critical to success for state-level 20-week abortion bans.
Beck joined the University of Georgia Law department in 1997, and is the Law School's Justice Thomas O. Marshall Chair of Constitutional Law.
“I think what you see is the pro-choice movement being very cautious in deciding whether to challenge” state-level bans on late-term abortions, he said. “The thing that you notice about the states that have passed 20-week abortion laws is that not all of those laws have been challenged.”
“There was a challenge to the Arizona law, there was a challenge to the Georgia law that was premised on Georgia constitutional principles,” Beck told LifeSiteNews, “not federal constitutional premises.”
Beck explained that the Supreme Court does not take every issue presented to it. “The Supreme Court often waits to take an issue until you find a division among the Courts of Appeals,” he said. “So you have a Ninth Circuit case saying the Arizona statute was unconstitutional. The question is, could you find, maybe, a Fifth Circuit, or a Fourth Circuit panel, that might uphold the 20-week statute?"
The question, according to Beck, is “how do you make sure that the case gets in front of the right circuit, and if the pro-choice movement is picking their venues, presumably they're going to try and look for friendly territory to challenge the statute.”
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His advice to the pro-life movement was to pick and choose states that are in Circuits that could provide “a positive response.” He cited a Houston abortionist who was conducting abortions similar to those of Gosnell, and said that “maybe what pro-life legislators and state executive officials should be thinking about is bringing enforcement options in states where they think there could be a positive response from the Courts.”
Last week, an Arkansas law preventing most abortions was declared unconstitutional by a district court under the Eight Circuit Court of Appeals because the law relied on the presence of a heartbeat, not viability. While several other states have seen defeat regarding similar legislation, Steve Benen of MSNBC notes six states are, respectively, working on a personhood bill, two 20-week abortion bans, two six-week abortion bans, and a ban on abortions at 18 weeks.
Pro-life legislators and executives have seen success with other measures, however. A Texas law requiring admitting privileges at hospitals, among other regulations, was upheld by the Supreme Court late last year. While the Court split 5-4, the Fifth Circuit Court of Appeals ruled 3-0 the law constitutional because it did not unduly burden women looking to get an abortion.
Guttmacher reports that “41 states prohibit some abortions after a certain point in pregnancy.” Twenty-one of those states do so on the basis of “fetal viability,” nine do so based on pain at 20 weeks, and three “impose prohibitions in the third trimester.”