Editor’s Note: Carliss Chatman is an assistant professor of law at Washington and Lee University School of Law and writes about corporate personhood, corporate governance, and ethics. Follow her on Twitter @carlissc.
Last week, Georgia joined the ranks of states in a sudden rush to ban abortions after a fetal heartbeat is detected, as early as six weeks after conception – before a woman may even know that she is pregnant. Kentucky, Mississippi, and Ohio passed similar laws this year. Alabama is taking its fight against choice even further, with a bill that not only bans abortions but makes it a crime for a doctor to perform an abortion.
Why the rush to pass legislation that will face an inevitable challenge from civil liberties, civil rights, and womens’ rights organizations? Because anti-choice legislators believe they will face a friendly bench in the Supreme Court.
The Supreme Court, first in Roe v. Wade in 1973, in Planned Parenthood v. Casey in 1992, and yet again in Whole Woman’s Health v. Hellerstedt in 2016, has made it clear that placing an undue burden on a woman’s right to choose an abortion before a fetus reaches viability (typically 23-24 weeks) is unconstitutional. The precedent is clear in three cases spanning 46 years. But today’s Supreme Court finally has five conservatives whom anti-choice advocates hope will ignore the legal history and rule based on their politics and personal beliefs.
More states – including South Carolina, Tennessee, Louisiana, and Texas all hope to join the fight to overturn Roe. Louisiana currently has a six-week ban and a constitutional amendment that would narrow the state’s existing right to privacy provision to exclude abortion pending in its legislature. The constitutional amendment is likely to pass early next week and the six-week ban shortly thereafter. In Texas, there are numerous onerous restrictions pending before its legislature this session – in spite of having its most recent attempts to restrict abortion access struck down in the Hellerstedt opinion.
The hope that the third branch of our government will maintain its principles feels farfetched in the current climate.
In addition to the change in the composition of the Supreme Court, in just over two years, the Senate has confirmed 100 judges appointed by President Trump.
Many of these judges are young, unqualified, and lacking in support from Bar Associations, senators from their own states, and advocacy groups. What they have in common is a reputation for conservative beliefs and a disregard for the rule of law.
With a flush of new judiciary in this mold, states now feel emboldened to take their chances in federal courts. If the lower courts uphold the laws, they may be allowed to take effect until the laws are challenged in the highest court. If the lower courts overturn the legislation, many states have vowed to continue pursuit – at taxpayer expense – to the Supreme Court.
What’s more, the absurdity of these challenges to clear precedent is compounded by the lack of consideration of common sense policy issues that arise when a legislature grants personhood so early in a pregnancy, treating an expectant mother like a host instead of an independent person with independent rights.
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As I posited in a tweet last week: “If a fetus is a person at 6 weeks pregnant, is that when the child support starts? Is that also when you can’t deport the mother because she’s carrying a US citizen? Can I insure a 6 week fetus and collect if I miscarry? Just figuring if we’re going here we should go all in.”
In short: If a fetus and expectant mother are two legal people, they separately have access to all rights and privileges.
What is happening here is clear, and should draw us all to the barricades: States are expending public resources to challenge a standard set a lifetime ago—all in hopes that five members of the Supreme Court will choose personal beliefs and politics over principles and clear precedent.