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People march in 37th annual March for Life marking the anniversary of the Supreme Court's 1973 Roe v. Wade abortion decision in Washington

Abortion

The ACLJ is committed to the sanctity of human life and opposes abortion in all circumstances. ACLJ attorneys have worked tirelessly to defend the free speech rights of those who engage in counseling and protesting outside abortion clinics and to oppose pro-abortion legislation in Congress and state and local legislatures in the U.S.
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Introduction

No issue other than slavery has divided the nation more than abortion. In 1973, the U.S. Supreme Court held in Roe v. Wade, 410 U.S. 113 (1973), that abortion is a Constitutional right protected, at least to a certain broad extent, by the federal Constitution. Since Roe, over 53 million unborn children have been killed in the United States, with a high of 1.6 million killed in 1990 alone.1 However, the number of abortions per year has decreased over the past twenty years.2 In 2010, only about 1.2 million abortions took place.3 This decline is due in no small part to a drastic switch in public opinion. A recent Gallup Poll conducted in May 2009 found that 51% of Americans identified themselves as pro-life, while only 42% said they were pro-choice.4  “This is the first time a majority of U.S. adults have identified themselves as pro-life since Gallup began asking the question in 1995.”5 The ACLJ is committed to the sanctity of human life and opposes abortion in all circumstances. It is further the position of the ACLJ that unborn children should enjoy the equal protections of the Fourteenth Amendment, which prohibits any state from “depriv[ing] any person of life, liberty, or property, without due process of law.”6  Because the U.S. Supreme Court has failed to recognize these fundamental protections, the ACLJ is committed to the mission of changing the law, as well as protecting unborn children to the fullest extent allowed by existing law.

How the Law Has Changed Since Roe v. Wade

Fortunately, the law has improved significantly since Roe v. Wade, starting with the landmark decision of Planned Parenthood v. Casey, 505 U.S. 833 (1992).  A central premise of the plurality opinion in Casey was that the Court’s rulings after Roe had “undervalue[d] the State’s interest in [protecting] potential life.” Id. at 873; see also Gonzales v. Planned Parenthood, 550 U.S. 124, 157 (2007). As a result, the Supreme Court has ruled that “[t]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” Id. at 157, and that the state has an “interest in promoting respect for human life at all stages in the pregnancy.” Id. at 163.

These later decisions represented a dramatic departure from Roe v. Wade, even though they did not overturn Roe entirely.  Under Roe v. Wade, the “right” to an abortion was judged by a “strict scrutiny” test (the highest level of Constitutional protection). Roe, 410 U.S. at 154, 162-63.  But in Planned Parenthood v. Casey, the test for abortions before viability shifted to an “undue burden” test, Id. at 874, in which the state may bar certain abortion procedures and substitute others if “it has a rational basis to act, and it does not impose an undue burden” on the woman seeking an abortion. Gonzales, 550 U.S. at 158. This created a balance, where states may enforce “[regulations] which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Casey, 505 U.S. at 877; reaffirmed in Gonzales at 146. 

Under this new test for abortions, numerous restrictions are available to the pro-life movement.  Although not perfect, it is imperative to embrace the tools that recent Supreme Court decisions allow in defending life. Therefore, the ACLJ encourages the following regulations on abortion.

Informed Consent Laws

Every State should have an informed consent law. In Planned Parenthood v. Casey, the Supreme Court explained, “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.” Casey, 505 U.S. at 877.   Informed consent laws properly require doctors and assistants to disclose to women the nature and risks of the procedure, as well as the effect of the abortion on the unborn child. Proper informed consent legislation should inform women of alternatives to abortion and counsel them accordingly. It should also require a 24-hour waiting period, mandatory ultrasound with a physician’s explanation, and playing the heartbeat of the unborn child for the mother. Considering that “approximately 40 percent of post-aborted women were still hoping to discover some alternative to abortion when going for counseling at the abortion clinic,” the importance of informed consent laws cannot be stressed enough.7

In Casey, the Supreme Court ruled that the state has a profound, valid interest in taking “measures to ensure that the woman’s choice is informed,” and that “measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.” Casey, 505 U.S. at 878.  The Court further explained,

[The] lack of information concerning the way in which the fetus will be killed … is of legitimate concern to the State.  The State has an interest in ensuring so grave a choice is well informed.  It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. Gonzales, 550 U.S. at 159-160 (citations omitted).

Parental Consent and Notification

The ACLJ urges every state to adopt legislation requiring minors to inform their parents and obtain consent before getting an abortion.  The Supreme Court has articulated that parents can play an important role in defending the lives of their daughters’ unborn children.  In fact, even in Planned Parenthood v. Casey, the Supreme Court reaffirmed the rule “that a State may require a minor seeking an abortion to obtain consent of a parent or guardian, provided there is an adequate judicial bypass procedure.” Casey, 505 U.S. at 899.  This judicial bypass procedure allows minors to “bypass” parental notification and consent, but only if a court grants special permission. See Zbaraz v. Madigan, 752 F.3d 370 (7th Cir. 2009).

Spousal Notification and Consent

Historically, common law recognized that a husband and wife were a single, unitary partnership—that “[m]an is, or should be, woman’s protector and defender,” that there is a “harmony, not to say identity, of interests and views which belong, or should belong, to the family institution,” as “founded in the divine ordinance.” Bradwell v. State, 83 U.S. 130, 141 (1873), Bradley, J., concurring.  Although this principle has long been abandoned, see, e.g., Casey, 505 U.S. at 896-97, its foundation in “the divine ordinance” can never be abolished (see, e.g., Gen. 2:24).  Because of the intimate union between a husband and a wife, the ACLJ maintains that a husband’s notification and consent should be an essential prerequisite to an abortion.

Unfortunately, the Supreme Court rejected this view in Planned Parenthood v. Casey. Id.  This rule was ironic, since Casey expressed that “[w]hat is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.” Id. at 877. Under this logic, the Supreme Court should at least permit laws requiring spousal notification. The ACLJ emphasizes the right of the father to be involved in such a crucial decision.    

Health Standards for Abortion Clinics

Even after the legalization of abortion, abortion clinics throughout the United States frequently maintain atrocious health standards, and are grossly under-regulated.8  The abortion industry has ridden on corruption and unsanitary conditions, which has resulted in the deaths of women and their unborn children alike, and has advanced abortionist profits at the expense of women’s health.9  Because of this epidemic of low standards, the ACLJ supports regulations that hold abortion clinics to the same standards as other hospitals.  Such regulations are constitutional and valid, according to the Supreme Court.  In Gonzales v. Planned Parenthood, the Court held that “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.” Gonzales, 550 U.S. at 878.

For example, on March 26, 2011, Governor Bob McDonnell signed a Virginia bill holding abortion clinics to the same standards as other hospital facilities.10 According to Sen. Jill Holtzman Vogel (R-Winchester), “This is not about banning abortion in Virginia.  It is simply caring for women who are about to have an invasive surgical procedure[,] [a]nd creating an environment for them where they have the opportunity to have that in a place that’s safe.”11  Abortion clinics, however, are so under-regulated that, according to abortion advocates, Virginia’s new regulations could shut down 17 of 21 abortion clinics throughout the state.12 

Conclusion

Abortion is not only harmful to the child who is killed by it, but by the mother carrying the child.  Until abortion is abolished in the United States, the ACLJ will fight to ensure that this heart-breaking decision is well-informed, executed as safely as possible, and made with proper counsel and consent.  In the long run, the ACLJ will always seek for the day when the promise of life, guaranteed by our Constitution,13 is secured for every human being, born and unborn.


1 Nat’l Right to Life Committee, Abortion Statistics : United States Data and Trends, http://www.nrlc.org/Factsheets/FS03_AbortionInTheUS.pdf (numbers were compiled from the Guttmacher Institute).

2 See id.

3 Id.

4 Lydia Saad, More Americans “Pro-Life” Than “Pro-Choice for First Time, Gallup  (May 15, 2009), http://www.gallup.com/poll/118399/more-americans-pro-life-than-pro-choice-first-time.aspx.

5 Id.

6 U.S. Const., amend. XIV, § 1.

7 David C. Reardon, Ph.D., Informed Consent: The Abortion Industry’s Achilles’ Heel, The Post-Abortion Review, Elliot Institute, http://www.afterabortion.org/PAR/V2/n2/INCONSNT.htm#N_34_.

8 See generally, William Saletan, The Back Alley 2011: How the politics of abortion protects bad clinics, Slate Magazine, February 2011, http://www.slate.com/id/2285358/landing/1/.

9 William Saletan, The Back Alley, Part 2: The abortion industry’s hidden factions: feminists, doctors, and entrepreneurs, Slate Magazine, February 17, 2011, http://www.slate.com/id/2285491/.

10 S.B. 924, Gen. Assemb., 2011 Sess. (Va. 2011), available at http://lis.virginia.gov/cgi-bin/legp604.exe?111+sum+SB924.

11 Rosalind S. Helderman, Virginia assembly says abortion clinics should be regulated as hospitals, The Washington Post, February 25, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/02/24/AR2011022407874.html.

12 Id.

13 U.S. Const. amend XIV, § 1.

As manager of a large company, I was told to lead a fund drive for the United Way - sponsors of, among other things, Planned Parenthood. Am I legally bound to do this?

Planned Parenthood is receiving funds from the United Way, while organizations like the Boy Scouts have had a pretty tough time dealing with United Way in some parts of the country. They shouldnít be requiring you to violate your sincerely held religious beliefs. It sounds like you explained to them what your religious beliefs were, and they're not willing to make an accommodation. It is a violation of your constitutional rights to be forced to associate with a group that you disagree with. The Supreme Court has recognized that freedom of association is your right. Not only do you have a religious claim, but you also have a freedom of association claim here. You should not be compelled to associate with a group that you disagree with. Thatís not the way itís supposed to work in this country. Your freedom of association rights should protect you in this. Your company cannot coercively compel requirements of association.

Can action be taken in the U.S., as it has in Australia, to allow women to sue abortion providers for failing to warn them against injury resulting from abortion?

The warning you're talking about is called informed consent, and basically, it just ensures that a person going in to have an abortion knows the risks involved. When you go in for a tonsillectomy, they list the possible side effects and risks of the surgery. With regard to informed consent to an abortion in America, there are lawyers working on it, and I believe we're going to see some real success on that issue as part of the cutting edge of where the whole pro-life movement is going. You've got abortion debate in the streets, which we've always had, and we'll always have as a free country; you've got the conscience clause objections among medical professionals, where those who have a pro-life position don't want to participate in the actual abortion procedure. Then you have the issue of informed consent, and I think there's been a complete lack of informed consent, in which a woman who is undergoing an abortion, a medical procedure, understands exactly what she's getting into. And that's one of the reasons we are moving very aggressively on that front.

Can my application for sexual assault counselor training be denied because I will not offer the morning-after pill to rape victims?

You shouldn't have been discriminated against this way. Conscience clause objections would even apply, in our view, to volunteers. This is one of the cutting edge issues within the context of the pro-life movement, because abortions now are not just a surgical procedure, but you're seeing so-called "medications" used to actually terminate the life. What we're seeing develop around the country is an objection clause in many state laws that says, "Look, medical professionals-counselors, doctors, nurses-don't have to participate in the abortion procedure if they object to it on religious grounds." It's not just the pharmacist or the counselor facing violations of conscience; it's also doctors and nurses who do not want to participate in these abortion procedures, but yet they are being told if they don't they're going to lose their job, their license, or their position. However, most states have now adopted these conscience clauses. And it makes sense: the Constitution of the United States says if you object to a particular procedure or act, because it violates your sincerely-held religious beliefs, you can't be compelled to violate those beliefs; so there is this protection constitutionally. Having this statutory protection of state law behind it really makes the defense of a conscience clause objection an even simpler and more straightforward case. So there are some good developments there. But we're monitoring each one of these carefully; and you should not have been disqualified from being a counselor because you're pro-life, which is exactly what happened.

Do abortionists or clinics have any liability for their mistakes?

They should, but I can assure you that Planned Parenthood will do whatever it takes to avoid paying for that. But look, when you perform 250,000 abortions, there's going to be a lot of complications -- nevermind the fact that you're taking an unborn child's life, which is hard for me even to say. Of course there's going to be complications. And you're never going to hear about them either. All you're going to hear is the mantra of "safe and legal," and, "We're doing this for the benefit of women." But really what they're about is a different agenda entirely. And when you look at the history of the organization, it's not hard to figure out what it is: Their solution to the world's problems is to kill people. That's really not the solution that I think most decent people agree with.

How can our justice system call the death of one unborn child murder and call the death of another aborted child a woman's right to choose?

I wish I could tell you that there's an easy answer to this, but there's not an easy way to reconcile those two positions because they're irreconcilable. We call that inconsistency the abortion distortion factor, because there are two sets of rules. Here are the facts: under laws of many states, including California, in order to get the death penalty you have to have "special circumstances" -- e.g., two counts of murder. So, what the state did was to bring two separate claims: one charge for the murder of the mother, and another for that of the unborn child. This satisfies the "special circumstances" provision, and, therefore, the death penalty can apply. Of course, as you mentioned, the inconsistency is that also under the laws of most states abortion is allowed, and the life can be taken there without any prosecution or violations of law whatsoever. In fact, to the contrary, abortion is enshrined in the Constitution as a constitutional right. And this is why I think it's so important to get the right judges in place. So, there is not a way to reconcile those opposing views, but what we can do is use these tragedies to point out the inconsistencies of the "pro-choice" position, and to try to create within the culture a value for human life.

How could Roe v. Wade be overturned?

That's a great question. Chief Justice John Roberts has been wrongly criticized for a footnote in a brief he wrote to the Supreme Court when he worked for the Justice Department where he stated: "We [the Justice Department] continue to believe that Roe [v. Wade] was wrongly decided." What that means is "right to privacy" does not equal a right to an abortion. That is not good law. Roberts was not the only sitting justice who has criticized the Court's decision in Roe. Justice Ruth Bader Ginsburg, who currently sits on the Supreme Court and who favors abortion rights, said in a written report that Roe v. Wade was wrongly decided on a "right to privacy." Roe is a constitutional embarrassment to many prominent legal scholars who otherwise support abortion. The decision has generated scathing commentary, and even Justice Ruth Bader Ginsburg, a staunch abortion supporter, has said that Roe was "heavy handed judicial intervention" that "was difficult to justify." If Roe goes back before the Supreme Court, it would probably be sent back to the states, and the states would decide it one by one.

Is it legal for a restaurant manager to forbid distribution of gospel tracts between customers because a third party complained?

Number one, it's not soliciting. The courts have defined soliciting as involving the exchange of money. The court has drawn a distinction between literature distribution and the solicitation of money, one having more constitutional protection than the other. I argued a case at the Supreme Court called United States v. Kokinda, which involved both literature distribution and financial solicitation. Justice O'Connor in her opinion wrote that "[one] need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand" -- in other words, that's different than money, where you've got an exchange of funds. That's more intrusive. But a restaurant is private property, so the owner of the property -- or the manager, as the designatee -- has the right to say, "I don't want that literature to be distributed on this property," as a private property ownership right. So, that's how that comes into play.

Is it legal for Planned Parenthood to offer free samples of the "morning-after" pill?

Planned Parenthood is working very hard to make the morning-after pill freely available without a prescription. You know, you can't even get a Tylenol or an aspirin in a public school without parental consent, and the idea that you can get a supposed medication, this morning-after pill, without parental consent is absurd. But this is the position they're advocating, and this is exactly why we're fighting.

What rights do citizens in our community have to object to the dispensation of the "morning-after" pill?

Number one, on the public sidewalk surrounding the abortion clinic, you have the right to hand out literature or to counsel women that are going into and out of those clinics. You have the right to be on those streets. You need to do it politely, but you do have the right to get the message of life out in that way. There was a case at the Supreme Court of the United States, where we challenged a Colorado law that had these 8-foot stay-away zones in place around abortion clinics throughout the state of Colorado -- that would apply to the clinics in your community as well. The Supreme Court, although they held that the actual stay-away zones were constitutional, acknowledged that if the pro-life protester, demonstrator, or prayer counselor was there first, they don't have to move those 8 feet away. So, the fact of the matter is, there's some really good law in place regarding this issue, and I would encourage you to engage in defense of life right where that issue is taking place, which includes the sidewalks surrounding the abortion clinics themselves. The fact that they receive federal funding really doesn't play into that, because you have a constitutional right to speak out on the issue of life. The Supreme Court has said that controversial speech is allowed on public sidewalks. Those are public forums, and you certainly would have the right to speak out on that issue. We have had several very high-profile cases at the American Center for Law and Justice that dealt with healthcare professionals who have refused to hand out the morning-after pill based on their religious beliefs; and we've had some very encouraging results. There are two cases -- one in California, one in Louisiana. The case in California did go to trial, and we got a jury verdict supporting the nurse's refusal to issue the "morning-after" pill. We also had a success in New Orleans, where a nurse was reprimanded for that very same reason. She was told that if she didn't do it, she would be terminated. We went to court for her, basically through an administrative process, and were successful there. So, there is a host of information that's out there, and I would encourage you to stand up for life in that regard.

Where does Planned Parenthood get the part of their income that doesn't come from taxes?

They get money from individual donors and foundation grants, which they have the right to do. Look, its a free country. They're allowed to raise money for their organization. But taxpayers don't have to pay for it. That's the difference here. They have the right to exist. We have the right to meet them in the courts of law and the courts of public opinion. But the federal government doesn't give our side any money to fight for life, nor would you expect it to. Yet tax money goes to Planned Parenthood. This shouldn't be.