By David S. Cohen
The Pennsylvania legislature is considering a blatantly unconstitutional bill that would infringe on the most basic aspects of the doctor-patient relationship and cost this cash-strapped state hundreds of thousands of dollars, if not more. And it's doing so with lightning speed that is designed to carve thoughtful deliberation out of the process.
The bill takes aim at almost all second-trimester abortions, as well as a good number in the first. Introduced on April 1, House Bill 1948 would ban dilation and evacuation, one of the most common surgical abortion procedures, and outlaw abortions after 20 weeks of pregnancy. Both of these provisions are highly problematic.
To start, these provisions interfere with the inviolate relationship between a patient and her doctor. When a woman goes to a doctor for an abortion, she has the moral and constitutional right to have the doctor determine the most medically sound method of treating her. Legislators should not practice medicine by substituting their judgment for that of the woman and her doctor.
Beyond this basic aspect of medicine, this law would mostly punish women who are already in a difficult situation. The reasons some women don't seek abortion care until later in their pregnancies vary, but for many, it has to do with obstacles to access such as cost, travel, waiting periods, substance abuse, mental-health problems, late-diagnosed medical conditions, and burdensome antiabortion restrictions. H.B. 1948 would hit these women, who are already dealing with tough circumstances, the hardest.
Both bans are also clearly unconstitutional. Since 1973, the Supreme Court has consistently ruled that states cannot ban abortion before viability, which is around 24 weeks of pregnancy. A ban starting at 20 weeks flouts the court's jurisprudence.
Supporters of the bill contend that a fetus can feel pain at 20 weeks, so abortions after this stage must be banned to prohibit cruelty. However, evidence-based research does not support these claims. Moreover, the Supreme Court has never wavered from its insistence that viability is the cutoff point for abortion bans, even in the face of dubious claims such as the current one about fetal pain.
The procedure-based part of the law is different. The bill would eliminate almost all surgical forms of abortion during the second trimester and cover many surgical abortions in the first trimester as well. What makes this provision so brazen is that the type of procedure banned was blessed by the Supreme Court as recently as 2007. In a case about a different, much rarer, abortion procedure - dilation and extraction - the court upheld a ban specifically because dilation and evacuation, the more common second-trimester procedure that Pennsylvania is seeking to ban, is available. The logic was simple: The government can ban a rare form of abortion, but it would be crossing a dangerous line if it banned the more common form.
Not only did the court almost explicitly find that a ban on dilation and evacuation would be unconstitutional, but it also noted in its opinion that the antiabortion attorney general at the time, Alberto Gonzales, did not dispute that a ban on dilation and evacuation would violate the Constitution.
In short, both parts of the bill being considered in Pennsylvania are clearly unconstitutional.
As a result, if this bill becomes law, the state is going to be on the hook for a considerable amount of money when it is challenged in court. Under a standard provision of federal civil rights law, when a court finds that a state has violated constitutional rights, the state usually has to pay the fees of the attorneys who brought the challenge. Depending on how strenuously Pennsylvania fights this law, the inevitable award could result in a significant amount of money being paid to lawyers vindicating women's rights. And this doesn't include the state's expenses to defend the law.
Despite concerns about costs and constitutional rights, the legislature fast-tracked this bill. There have been no public hearings, reports, or testimony. Rather, the bill was introduced in the House April 1, publicly disclosed April 4, and first voted on just two days later. This is not how democracy is supposed to work, especially when constitutional rights are at stake. Fortunately, Gov. Wolf has promised to veto the bill should it pass both houses of the legislature, though there are concerns that there may be enough votes to override a veto.
Here's the bottom line: The Pennsylvania legislature is on the brink of ignoring the Constitution by whittling away at reproductive rights. Any legislator voting for this bill is voting to harm Pennsylvanian women, deliberately ignoring the Constitution, and fiscally harming every citizen of this state.
David S. Cohen, a professor of law at the Drexel University Thomas R. Kline School of Law, is on the board of the Women's Law Project and Abortion Care Network. He is a coauthor of "Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism." email@example.com