Ohio Attorney General Mike DeWine has FINALLY taken a leadership role. . . . wait for it . . . in the fight against reproductive rights.
And he is doing some pretty poor lawyering along the way.
Last week, DeWine filed a brief in the United States Supreme Court urging the court to uphold the constitutionality of severe restrictions on abortion rights passed by the Arizona legislature.
The case involves an Arizona law that forbids, except in a medical emergency, abortions after twenty weeks. The Court of Appeals found that the law “is unconstitutional under a long line of invariant Supreme Court precedents.”
DeWine was the lead attorney on the brief; he was joined by fifteen other Republican attorneys general.
DeWine should not be doing this. Ohio does not have a law like Arizona’s. He doesn’t even suggest in the brief that Ohio is considering such a law (see pages 6-7). This is not our fight.
The Arizona law is one of a long series of attempts by anti-abortion legislatures and governors to restrict abortion rights, in an effort to both chip away at abortion rights and create a “test case” for the Supreme Court to reconsider Roe v. Wade. The key fact in the Arizona law is that it claims to have the purpose of preventing pain to fetuses. Other states have tried to follow Arizona’s lead in enacting legislation to restrict abortion on the grounds of protecting against “fetal pain.”
DeWine argues that the law is consistent with the existing law on abortion rights. See Part III of brief. He could not be more wrong.
The Supreme Court has been clear that women have a constitutional right to choose to terminate a pregnancy before the fetus is viable without undue interference by the state. That holding is found in a case known as Casey.
A quick Constitutional Law primer: This right is encompassed within a woman’s right to personal privacy, as recognized by a long line of cases holding that the constitution protects a person’s right to make personal decisions relating to marriage, procreation, family relationships, and contraception. The cases are: Loving, Skinner, Prince, Griswold,and Eisenstadt. Roe was just a continuation of this line of cases. The viability of these cases continues today, as the court has over the past decade recognized that the right to privacy includes the right to engage in consensual sexual relations and the right to marry. Lawrence and Windsor. The Casey decision reaffirmed the core holding of Roe.
What DeWine is trying to accomplish is to ask the Supreme Court to abandon the viability line first drawn in Roe, and then later reaffirmed in Casey.
He tries to do this in two ways.
First, DeWine argues that the Arizona law “merely requires women to make [their] choice in the first half of pregnancy before unborn children can feel pain . . . The law, in other words, is not a “prohibition” on abortion under Casey, because it merely regulates the manner in which abortions should be performed.” This is demonstrably untrue. The law effectively prohibits women from exercising the right to terminate a pregnancy before viability. This is easy to see, as the law does not regulate certain procedures, but essentially bans abortion after 20 weeks and before .
Second, DeWine suggests that the law is necessary to protect women. He argues that it “traumatic” for a woman to later learn that her unborn child suffered during the abortion and that the restriction is necessary to not only “protect against fetal pain” but also to “promote maternal health.” The inherent paternalistic silliness of this argument should be obvious. From a legal basis, it is also wrong; the decision runs directly into the core idea of Roe and Casey that women are free to make this decision (like other medical decisions that carry risks, benefits, and moral questions) in consultation with their medical providers.
In the end, DeWine tries to rely on this new concept of “fetal pain. However, DeWine “acknowledge[s] that the evidence on fetal pain remains contested.” The New York Times recently wrote a good article on this subject. From a legal standpoint, this seems like a non-starter, as a legislature could, perhaps, preserve choice by requiring anesthetization of the fetuses (we don’t know if this would pose an undue burden or not). But even if fetal pain is true, that is not the end of the story. Some birth defects cannot be detected until after 20 weeks; and a woman, not the state, should retain the right to choose whether an abortion would be better for her child than a short and painful life after birth.
So here’s the thing.
Just last week we wrote: “What the public needs now is some leadership from the Attorney General.” This was in reference to the privacy risks posed by facial recognition software rolled out by the Attorney General’s office without adequate safeguards.
We were wrong. DeWine is leading. DeWine clearly isn’t interested in leading in protecting us against unwarranted government intrusion. But in the Republican fight against women’s reproductive rights, and the Republican fight against the right to marry – that is where DeWine is a leader.
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