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Are the New Abortion Laws Legal?

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By George Khoury, Esq. on May 15, 2019 1:00 PM

Big headlines about changing abortion laws have been causing quite a bit of charged public debate about what's right, what's wrong, and what's fair. But regardless of a person's beliefs, one question that everyone is asking is: Are these new abortion laws out of Alabama, Georgia, Ohio, and other states, legal?

Unfortunately, like most legal questions, there is no clear-cut answer, as the "physicians-only" abortion case out of Virginia, where the judge just flipflopped, illustrates. And just because a law was passed by a state government, or by a public vote, that doesn't necessarily mean the law falls in line with federal constitutional protections.

States Challenging Established Precedent

First and foremost, it's important to note that the Constitution itself does not explicitly guarantee the right to abortion, but it also does not prohibit it. It wasn't until the United States Supreme Court ruled in Roe v. Wade back in 1973, that states became restricted in how and when they could prohibit abortions, as the Court ruled that access to abortion is a substantive due process right protected by the Fourteenth Amendment.

Just about everyone who has ever discussed abortion rights has heard of the Supreme Court case Roe v. Wade. That case set the national standard for when abortion can and cannot be prohibited by states based on fetal viability in the three trimesters. A 1992 case, Planned Parenthood v. Casey, essentially reaffirmed Roe v. Wade based on more recent scientific research about fetal viability, further limiting a state’s right to restrict abortions prior to viability.

Despite the clear Supreme Court guidance, lawmakers in Alabama approved a bill to effectively ban abortions altogether. But unlike the recently passed law in Georgia, Alabama's law would even prohibit abortion in cases including rape and incest. Additionally, the proposed law creates criminal penalties for abortion providers with harsh penalties including lengthy prison sentences. Notably, the lawmakers made their motivations clear that the bill was passed for the express purpose of challenging the Supreme Court ruling in Roe v. Wade.

Ohio Abortions on Trial

The ACLU and Planned Parenthood just filed a challenge to the recent fetal heartbeat law passed in Ohio. That law prohibits abortions if a doctor can detect a heartbeat, which can occur as early as six weeks after conception. Like the proposed Alabama law, the Ohio law was designed to challenge Roe and Casey's standards for fetal viability. But unlike, Alabama, the prohibition is set to take effect on July 10 of this year, rather than sometime next year if it gets signed into law. The legal challenge in Ohio seeks to stop the enforcement of law before it can take effect.

It is anticipated that the new, more restrictive abortion laws that are being passed, and particularly the laws that amount to a full prohibition, will be rejected by the federal district courts, as well as the federal appellate courts, as both are bound by the Supreme Court's prior decisions. Only the Supreme Court can reverse the Supreme Court. However, as discussed, the lawmakers are hopeful that the legal challenges will reach the Supreme Court, which, due to the two newly appointed Justices, has moved decidedly in a more conservative direction.

In the end, whether these new abortion laws will be considered legal will more than likely require the Supreme Court to issue a ruling, or reject the appeals that are bound to come from federal appellate courts.

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