Editorial: Six-week bans on abortions are unconstitutional, and abortion opponents know it

The drive to do away with abortion rights continues with a fervor that time doesn’t seem to diminish. The fact that 46 years have passed since the U.S. Supreme Court decided in Roe vs. Wade that women have a constitutional right to a safe and legal abortion seems only to have energized the opposition.

The court’s rulings on abortion haven’t been accepted in the same way other landmark rulings on social issues have. Laws are not passed to challenge or undermine the court’s decision in Brown vs. Board of Education. While there are some bakers who won’t make cakes for gay couples and some clerks who won’t issue them marriage licenses, for the most part, society seems to be catching up with the courts on that issue too, and people don’t stand outside wedding chapels screaming that gay couples are sinners.

But opponents of abortion have chosen to test, relentlessly, the boundaries of the three landmark Supreme Court rulings on abortion that began with Roe vs. Wade. State legislatures have passed more than 1,000 restrictions on abortion since Roe was decided, all designed to stop, slow or impede women’s ability to exercise their long-established right. Opponents of a woman’s right to choose have passed laws mandating counseling, waiting periods, parental consent for minors, restrictions on abortion clinic design, regulations on who may perform an abortion and limits on how late in a pregnancy an abortion may be allowed, to name just a few.

The Supreme Court has ruled that states may not place an “undue burden” on a woman’s right to get an abortion. But even the court’s 2016 decision to overturn an onerous Texas law requiring abortion doctors to have admitting privileges at nearby hospitals did not stop other states from coming up with similarly burdensome laws.

For women who live in states with few abortion clinics, access is a severe problem. In states that have passed laws making it unnecessarily difficult for clinics to operate, many have been compelled to close — even if the courts have eventually enjoined those laws or struck them down. Today, there are six states that each have only one abortion clinic.

Many of these laws — such as the ones requiring abortion providers to have hospital admitting privileges or mandating that clinics be outfitted like surgical centers — have been falsely presented as efforts to protect women’s health. Courts have said as much when they struck down those laws.

However, just in the first few months of this year, state legislatures have abandoned such pretenses and have upped the ante in their fight against abortion rights. There was even a short-lived bill proposed in the Texas House of Representatives that would have made having an abortion a homicide — punishable, in some cases, by the death penalty. That bill didn’t even make it out of its first committee.

More troubling are a spate of bills that ban abortion as soon as a fetal heartbeat is detected — which is usually around six weeks. It’s also a point at which many women don’t even know they’re pregnant. Mississippi, Kentucky and Ohio have signed such bans into effect. Georgia’s governor is expected to sign a similar bill. Ten other states have introduced or begun moving similar bans through their legislatures (although they’re likely to pass in only some of those states.)

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These bans are flagrantly unconstitutional, since abortion is allowed under Roe vs. Wade until the fetus is viable — which is at about 24 weeks. A six-week ban in North Dakota enacted in 2013 and a similar ban in Iowa from 2018 were both struck down by courts. A judge has blocked the new Kentucky law pending a trial. The Mississippi ban is in court and the Ohio one is headed there.

But even if antiabortion legislators are losing in court, that’s exactly where they want these bills to go. Their goal is to run one of these cases all the way up to the Supreme Court, where they hope the court’s new conservative majority will use it to overturn or severely limit the right to an abortion. The addition of President Trump’s appointee Brett M. Kavanaugh to the Supreme Court has emboldened abortion opponents to push these cases through the courts.

The Supreme Court should not take any of these cases, but should treat Roe vs. Wade as settled law. As abortion cases do move through the courts, judges should use the opportunity to once again affirm a woman’s constitutional right to abortion. Maybe eventually, finally, opponents will stop their shameful misuse of state legislatures and courts to undermine and disrespect the rule of law.

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