In their bid to undo Roe v. Wade, anti-choice activists are in a race to see which of their abortion-restrictions can find its way to the Roberts Court first. So far two distinct avenues to get Supreme Court review have emerged, the push to recognize fertilized eggs as persons under the law, and and 20-week “fetal pain” bans. And while “personhood” initiatives are designed by their nature to challenge Roe directly, it is the fetal pain bans that are most likely to undo the decision altogether.
To understand why personhood won’t likely doom Roe but fetal pain bans will we have to look at not just the language of these two abortion restrictions, but the legal strategy afoot in their passage. Take the most recent legal battle over fertilized eggs-as-people in Oklahoma.
Last spring Personhood Oklahoma circulated a proposed ballot initiative that would have amended the state constitution to define a person as “any human being from the beginning of biological development” which as the state attorney general explained, meant fertilization. The matter was immediately challenged by the ACLU and Center for Reproductive Rights. The state Supreme Court, in a unanimous opinion, declared the initiative “void on its face” because it directly contradicted precedent from Roe, through Planned Parenthood v. Casey and beyond and was therefore, in the court’s words, “constitutionally repugnant.”
Now, while the Oklahoma personhood initiative obviously conflicts with federal law recognizing a woman’s fundamental right to privacy (which includes a right to chose abortion), neither the ballot initiative process nor the ruling from the Oklahoma Supreme Court that blocked it addressed any issues of federal law. This point was made by Ryan Kiesel of the ACLU of Oklahoma in an interview with RH Reality Check:
“This case never presented any federal issues for the U.S. Supreme Court to consider,” Kiesel said. “For the Supreme Court to have intervened it would have to hold that the Oklahoma Supreme Court’s interpretation of Roe and Casey was so flawed that they could jump in.”
Kiesel explained. “States have reserved to them right to afford their state citizens the opportunity to hold a referendum or initiative on their own, and the federal courts have said that states have lots of leeway in running that process. For example, states can limit the ballot or initiative process to measures related only to revenue and taxation. In Oklahoma we have a restriction on the initiative process that prevents it from being used as a weapon to create a test case. Which is exactly what was being done here.”
But fetal pain bans like the one passed in Arizona and working its way through the Ninth Circuit Court of Appeals are a different story. Here supporters have taken a different tack to get before the high court. Designed to exploit the fault-lines already established in abortion jurisprudence thanks to the battle over “partial birth abortion bans,” fetal pain bans do more than just dare the Supreme Court to reverse itself like the personhood amendments do. Fetal pains bans direct the Court how to do unwind Roe in a fashion that can be “sold” to the American public.
That direction comes largely by framing the battle over abortion restrictions based on the idea of “fetal pain” as one of scientific evolution that now “justifies” this restriction as was done in Gonzales v. Carhart, the 2006 decision that upheld the federal “Partial Birth Abortion Ban.” Just like the fight in Gonzales, advocacy groups have filed briefs in support of Arizona’s ban that are full of “evidence” they argue supports the claim a fetus can feel pain at 20-weeks gestation. And also just like the fight over “partial birth” abortion bans supporters of fetal pain bans strategically named the restriction to help sell the “reasonableness” of it to the public, but most importantly, to the federal judges who will ultimately decide the restrictions’ fate.
In contrast to the push for personhood which frames the issue of abortion as one of philosophical and spiritual absolutism that purports to legally settle the issue of when life begins, fetal pain bans don’t force such a decision on federal judges. So even if fetal pain bills get to the same result as personhood measures and are largely supported with the same underlying philosophical belief that life begins at fertilization a federal judge isn’t required to “decide” when life begins. And since fetal pain bans immediately implicate federal law by their nature since they strain-beyond-reason Supreme Court “undue burden” jurisprudence, Supreme Court review is all but guaranteed.
Personhood initiatives and fetal pain bans serve as a good reminder that the law is much like political messaging in that it involves both the optics and substance. Personhood advocates have lost on the optics badly by not even trying to appeal to reason while simultaneously peddling a message no court really wants to weigh in on. Fetal pain advocates seems to have done the opposite. And that is why we need to take those challenges much more seriously.
That leaves the question open then of why personhood advocates are pushing so hard for a Supreme Court review that is likely never to happen?