Case: Texarkana Attorney General v Planned Parenthood of Texarkana
I. Summary of the Case
The Abortion Clarification Act, enacted by the State of Texarkana, presents numerous changes to previously defined abortion rulings and legislation. Referring to Roe v. Wade, the Act affirms abortion in the early stages of a woman’s pregnancy. The Act challenges the rulings in Roe regarding the viability standard. In Roe, the State could ban abortions once the fetus reached viability. Using the trimester framework, the Court ruled that the third trimester would be defined as the point of fetus viability. Once a fetus reaches this point, the State has a compelling interest in protecting its future life, and therefore has the right to ban abortions. The Abortion Clarification Act attempts to change the point which the State considers the fetus to be of compelling state interest. The legislation attempts to implement the “fetal heartbeat standard”, which claims to be, “more certain, consistent, and capable of being applied in a principled manner.” The State also argues that the fetal heartbeat standard is “plainly discernible, does not significantly shift with technological advancement, and is widely understood by the public to be indicative of the existence of a distinct human life.” This notion would change the point in which the State could ban abortions from six months to approximately six weeks. Along with the “fetal heartbeat standard”, the ACA hopes to change the “health exception” implemented by the Court in Doe v. Bolton. It wants to remove, “emotional, psychological, familial, and the woman’s age” as health factors that allow for legal late-term abortions. It proposes that the only exception for post-fetal heartbeat abortions would be to protect the physical health of the mother. Finally, the Act affirms the undue burden standard of Casey v. Planned Parenthood. Immediately following the signing of the statute, Planned Parenthood of Texarkana filed suit. They presented their contention in the parts of the ACA that prohibited abortions before viability as well as the elimination of the four other health standards defined by Doe. The court granted this injunction but the ruling was reversed by the Court of Appeals. This case has now been granted certiorari for review by the Supreme Court.
II. Fetal Heartbeat Standard
One of the major changes the ACA attempts to make is the establishment of a new fetal heartbeat standard. Applying this standard would significantly reduce the amount of time needed in a pregnancy for the government to consider the fetus a compelling state interest. The plaintiff, Planned Parenthood of Texarkana, will immediately refer to the precedent set by Roe v. Wade as their strongest argument. In Roe, the Court deemed abortion a constitutional right implied in the Due Process Clause of the 14th Amendment. The right to privacy found in this Amendment and previously defined by Griswold v Connecticut, prevents unwarranted government intrusion in family matters. Therefore, a woman has the right to plan her family on her own terms without the involvement of the government. The case also outlines the fact that the government only has a compelling interest in the life of the fetus once it reaches viability in the third trimester. This precedent set by Roe v. Wade is difficult to overturn on merely a change in medicine and technology. It is not a question on the advancement in science but a fundamental right rooted in the substantive due process of the 14th Amendment.
Planned Parenthood will also use the argument of Equal Protection. Moving the definition of life from viability to fetal heartbeat also has implications regarding the Equal Protection Clause of the 14th amendment. This change in the timeline forces more women into the burden of motherhood. This conscripted burden affects women’s ability to contribute in the economy and establish their own lives. Motherhood requires years of service without a financial compensation. Men do not have the same obligations as women regarding pregnancy. They may have to financially support the child, but they do not bear the burden of childbirth pain and the physical tolls of pregnancy. These clear disparities regarding men and women during pregnancy creates an unequal citizenship stature that clearly violates the Equal Protection Clause. As Justice Blackmun stated in Casey, “this assumption- that women can simply be forced to accept the natural status and incidents of motherhood- appears to rest upon women’s role that has triggered the protection of the Equal Protection clause.”
The State of Texarkana will refer to technology and science when presenting their argument for the “fetal heartbeat standard.” First, the State will argue Roe’s viability standard is unprincipled and unworkable. Due to these conditions, the notion of starre decisis holds substantially less weight. The changing technology described in this case essentially makes the viability standard unworkable and therefore allows for a changing of the precedent set by Roe v. Wade. As modern technology advances, so does the chances of fetus survivability outside the womb, therefore changing its viability. This can present numerous problems with establishing viability strictly at the third trimester. The advantage of the “fetal heartbeat standard” is that it does not change even with the advancement of medicine. It establishes a point of personhood that is consistent and detectable.
Texarkana will further their argument for the “fetal heartbeat standard” and the by acknowledging that Courts have overturned precedents regarding the status of personhood before. For example, Brown v. Board of Education changed the precedent of separate but equal created by Plessy v. Ferguson. This solidified the equality of black and white persons. Given that the Court has overturned precedent regarding personhood in the past, the State will argue that the moment of personhood during pregnancy can change as well. Under this assumption the “fetal heartbeat standard” is justified.
The State will also argue that even if the Court does not find the precedent in Roe unworkable, the statute is still constitutional under the rulings of Roe. The Sate of Texarkana would attempt to demonstrate that the ACA doesn’t disregard a woman’s right to privacy granted by the Constitution, it only wishes to modify the point of compelling government interest due to the advancement of medicine. This case therefore is not a case on constitutional change, but merely on the change of government’s definition of personhood. The viability standard was essentially created by the courts using the scientific and medical standards at the time to establish a defined point in which the fetus is considered livable outside the womb. It was grounded in science and not the constitution and therefore should be subjected to change as the science and medicine evolves. The ACA does not seek to change the constitutional ruling in Roe and the subsequent cases in which it affirmed, but wishes to change the time in which States can take compelling interest in the fetus. If a fetus can live outside the womb, there is the same potentiality for life as a new born infant. Assuming you would never murder a new born because of your moral code and societal norms, there is no justification then for killing these fetuses that can survive in the months before the third trimester.
The State may also make an argument regarding the Equal Protection Clause of the 14th Amendment. Under this new Fetal Heartbeat Standard, the State would start having compelling government interest at the first detection of a heartbeat. Under this notion the fetus and the mother are defined as different individuals. With separate identities, it would immediately grant the fetus equal protections of the law. This would eliminate the mother’s right to abortion and grant the fetus right to life defined by the 14th Amendment.
III. Health Exception
The second exception that the ACA wishes to modify is the “health exception” defined in Doe v Bolton. The Act attempts to limit post-fetal heartbeat abortions only to women in physical harm. This would eliminate the familial, age, psychological, and emotional measures of health stated in Doe. Planned Parenthood of Texarkana will most likely argue this violates the Court’s interpretation of the 14th Amendment in Roe. The Supreme Court has the ultimate power to interpret the Constitution. Thus, a State’s ability to overturn a precedent rooted in Constitution is very difficult.
Planned Parenthood will also argue the notion of “health” is subjective. There is no ability to judge what is more harmful to the woman, a physical harm or one of the other harms outlined in Doe. Due to the State’s obligation to protect the life its women citizens, it is difficult to assume that physical harm is more damaging than psychological or emotional harm. Failure to protect emotional and psychological harms may have future physical effects on the citizen. When determining health, it should be placed into the hands of trained medical professionals and not the legislature. The “health exception” decided in Doe allows doctors to make rational decisions based on each woman’s individual case. This case-by-case basis should not be restricted by the overarching reach of the court.
In response to Planned Parenthood, the State is likely to embrace the argument that the Doe ruling essentially voids the validity of the Roe decision. It is commonly accepted that at some point in the pregnancy the fetus gains it personhood and should be granted the right to life. This was established in the Roe trimester framework and has been affirmed in numerous subsequent cases. The “health exception” makes the State incapable of having a compelling interest in the life of these fetuses at any point. The broadness of the exception covers any woman in late pregnancy and essentially legalizes any abortion. Physical problems are the only problems that require constitutional protection because the State has substantial interest in the life of the mother. Familial, age, psychological, and emotional problems are not immediate threats to the mother’s life. The other problem that can arise with the argument regarding medical professional review, is the idea that some doctors may permit illegal late term abortions for woman that do not fall under the health exception. Due to the subjectivity of these decisions, it would be extremely difficult for the court to review. This would grant a dangerous amount of freedom and power for doctors to commit ill-advised abortions.
IV. Undue Burden
The Abortion Clarification Act also affirms the concept of “undue burden” that was implemented in the Casey decision. Under this standard, the State cannot place an undue burden on a woman trying to get a pre-viability abortion. This replaced Roe’s strict trimester standard with a much more loosely defined structure. Roe originally granted the State the ability to regulate abortions regarding women’s health in the second trimester, but the undue burden allowed for these regulations to be revoked. The argument against undue burden arises in its subjectivity. Undue burden can essentially be applied to any abortion regulation in the woman’s second trimester. This vagueness essentially nullifies the basic concept of the Roe trimester framework. Even legitimate regulations to protect the mother can be claimed as undue burdens. This broad and subjective standard would present issues in applying it equally across the states as well as applying it without prejudice.
Juxtaposed against the subjectivity argument, the argument for the undue burden standard can be potentially found within the Court’s reading of the 14th Amendment’s right to privacy. If one would assume that right to privacy is a fundamental right implied in the Due Process Clause, then the courts must take all measures to protect this right. Using undue burden as a measure of restrictions placed on these abortions, it would allow for the most protection of the woman’s right to early pregnancy abortions. Undue burden eliminates the ability for the State to infringe on the woman’s rights with obscure regulations and completely protects the women’s fundamental right.
V. Deferment to Legislature
The judiciary must be cautious if they are to defer to legislative judgements on abortions, specifically in regards to advancement in technology and medicine. A conservative legislature may use science to continually alter the moment of personhood. Making an exception in this case because of the advancement in medicine could potentially lead to the complete banishment of abortion. The legislature could use the advancement of science to lay a substantial claim that personhood starts at conception and therefore the State has compelling interest in the fertilized egg. If this scenario did in fact occur, the fundamental right to early stage abortion would effectively be destroyed. Although the ACA claims that the fetal heartbeat standard is consistent and convenient, there still is the potential for the science to detect a heartbeat sooner or claim that they could keep a fetus alive without a heartbeat. In general, granting the power of abortion regulations to the legislature can potentially cause a gradual shift away from the fundamental right to abortion, to the complete banishment of it all together.
The argument that would come in favor of the deferment to the legislature would be the notion that moral debates in America should not be left up to the judgement of the Court. The judges are not experts in these specific fields and cannot give answers that are always correct. These judgements should be decided in a democratic process by the people of the nation. The legislatures should be able to create regulations and legislation in accordance with the beliefs of their constituents.
VI. Justice of Permission
The judgement of this case is very difficult to do without acting on your opinion of the justice of abortion. Since abortion is not stately clearly in the physical writing of the Constitution, it requires an interpretive reading of the document. To identify abortion, you must believe in the right to privacy defined in the Due Process Clause. This notion of substantive due process is essentially contrived by previous readings of the amendment. Due to substantive due process’s lack of clear definition, the courts find the right to privacy because of their personal opinions on the justice of abortion. Therefore, in deciding the constitutionality of this case, one must be aware of his own opinions regarding abortion. In my opinion, the only way to eliminate this opinion would be to eliminate the courts judgement on moral cases entirely. If the question brought to the court is not specifically outlined by the writing of the Constitution, it should be voted upon by the people of the State in a democratic process. This would effectively eliminate any individual moral rulings and leave the decision up to the voice of the people.
In this case of Texarkana v. Planned Parenthood, the state has the stronger argument regarding the ACA’s “fetal heartbeat standard.” The statute retains the constitutionality ruling of the right to privacy defined in Roe. It simply modifies the outdated and subjective point of viability with the new medical technology. The trimester framework has no constitutional basis and should be subject to change with advancements in technology. Regarding the “health exception,” Planned Parenthood holds the stronger argument. It is completely subjective for the State to consider the physical factor of the “health exception” to be the most importance. The other factors may hold substantial weight regarding women’s health and is not up to the court to decide. The affirmation of undue burden is crucial if considering abortion to be a fundamental right found in the 14th Amendment. It allows for complete protection of the right from states’ unlawful regulations.
Law is inherently based in the moral convictions of society. These convictions however are subject to change throughout time. It is an agreed upon notion that the moral standard of the United States is much different than it was fifty years ago. It is this evolution that gives the marriage between law and morality its justification. The concept of doing away with public morality is fundamentally flawed considering, agreed upon values and norms dictate the legal codes of society. These laws are ultimately a social contract affirmed by society and are susceptible to changes as the moral environment of society changes.
Although morality may not be as objective as science, it does not mean it is an incapable way of determining law. First I would argue that doing away with morality in law is an impossible task. Morality is the foundation of every law and its validity. There is no law that is not based in some conception of right and wrong. Even the most agreed upon laws such as the prohibition of statutory rape are grounded in morals. Although statutory would be considered a part of privacy jurisprudence, there is no reasonable judge that would consider this to be a freedom that is being infringed upon. It is for this reason there is no method for detachment between morality and law.
I would also argue that although morality is not objective, it is fluid and this fluidity eliminates the need for objectivity. The idea of what is right and what is wrong in society is ever changing. Privacy rulings such as Roe and Griswold are not technically doing away with public morality, they are just portraying the current state of society’s moral code. Four-hundred years ago, incest and polygamy would be more acceptable than gay marriage. As society has evolved, so has its morals. Under this belief, it is not the Court eliminating public morality, it is the Court simply adjusting to its fluid nature. This can be seen in Gonzales v Carhart. Although the common consensus of the nation is that abortion is morally ok, they do not believe that partial-birth abortions are morally acceptable. This judgement has nothing to do with an objective scientific fact, it only has to do with what the consensus on moral abortion. Although science may be objective, it still needs moral interpretation. Findings in science may present facts that lead to immoral outcomes that violate society’s beliefs. Even though these facts are objective it doesn’t mean you would create a law that would contradict the current state of morality in society.
In addressing the fear of the imposition of moral opinions on the minority, I would argue that the moral consensus of the majority allows a democratic government to function. In a governed society, everyone fundamentally enters a social contract to feel safe. A government must create laws that conform with the majorities opinion. This allows for the maximum number of citizens to be protected by the government. Just because a minority group believes it is ok to practice incest or write hate speech, it does not mean that it should be a freedom protected by the government. Most of society would consider these moral wrongs and opt for legal protection. This notion on majority consensus does run the risk of marginalizing some minorities. Therefore, the Bill of Rights exists in the Constitution. It allows for all individual’s fundamental rights to be protected. This can be seen in the case of Texas v Johnson. Although most American citizens would consider the burning of the flag to be disrespectful and potential ground for legal action, the 1st amendment in the Bill of Rights protected Johnson’s right to symbolic speech. This shows that even a minority can still be protected by the moral law.
Finally, it is important to respond to the notion that police powers are strictly to protect tangible harms and not intangible moral harms. The harm principle defined by Mill grants citizens as much freedom as possible without harming someone else. This does not clarify what type of harm. It is subjective to define a tangible harm. A moral harm may have the same tangibility as one classified as tangible such as physical or financial. Due to this subjectivity, the moral consensus comes into effect. The courts and legislature must use this consensus to determine what is harming society. Obscenity laws are a prime example of a harm that isn’t technically tangible. Watching pornography may not have an immediate financial or physical harm but society considers it harmful enough to regulate it. This is seen with hate crimes as well. These crimes are not always physical but are still morally wrong and should be outlawed by the government. These examples demonstrate the notion that a harm doesn’t always have to be tangible to be considered proper grounds for policing.
Overall I would disagree with eliminated public morality in regards to privacy and free speech jurisprudence. Doing away with public morality as a legitimate police power is not only impossible but unwise. With morality being the basis of all law, the necessity for the law to conform with the publics moral compass is essential. It is this conformity that gives laws validity. Morality is a fluid concept that changes with time so therefore doesn’t need to be objective. Its fluidity allows for it to adjust with changing moral environment of society. The concern about tyranny of the majority is refuted by the basic notion that a democratic society needs the morality of the majority to function. It cannot always please everyone but should please as many people as possible. The Bill of Rights is instituted to protect those fundamental rights of the minority. The final concept of tangibility is completely subjective and cannot be considered a justified argument. Moral harm can be just as important as tangible harms and therefore needs to be protected by the government. Overall, the attempt of separating public morality from law is improbable and opposes the fundamental idea of law.
I pledge my honor I have not violated the honor code on this examination.
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