Three Rulings Against Women's Rights

By The New York Times | Editorial

01 August 12

t a time when abortion rights and women’s access to affordable contraception are threatened by political attacks, judges in three newly decided federal cases failed to preserve constitutional protections for women.

On Monday, Judge James Teilborg of the United States District Court in Phoenix upheld an Arizona law signed by Gov. Jan Brewer in April that bans all abortion procedures at 20 weeks from a woman’s last menstrual period, which is about 18 weeks after fertilization.

It is the most aggressive of the previability abortion bans passed recently by a handful of states. It defies binding Supreme Court precedent that prevents states from banning abortions before a fetus can survive outside the womb, which generally occurs at about 24 weeks.

To get around that pesky barrier, Judge Teilborg erroneously characterized Arizona’s outright ban as a permissible "regulation" that limits only "some" previability abortions. To make that argument, he relied, in part, on the fact that the ban contains a dangerously narrow exception for a "medical emergency."

The judge also found the state had valid reason to enact the statute, embracing medically dubious claims about when a fetus can begin to feel pain. He was dismissive of realistic concerns that the law endangers women who develop life- or health-threatening medical problems late in pregnancy and that severe fetal abnormalities sometimes cannot be diagnosed before 20 weeks.

An emergency appeal to the United States Court of Appeals for the Ninth Circuit seeking to stop the law from taking effect on Thursday should be granted.

In United States District Court in Denver on Friday, Judge John Kane issued a temporary injunction forbidding the Obama administration from requiring a secular, for-profit heating, ventilation and air-conditioning company from complying with the new requirement that it provide employees with contraceptive coverage.

There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute protecting such exercise should not be in play.

The Justice Department argued that the notion of a religious freedom violation should be dismissed, but, disappointingly, Judge Kane declined to do so.

The third ruling was a decision last Tuesday by the United States Court of Appeals for the Eighth Circuit in St. Louis. The court, sitting en banc, upheld, by a 7-to-4 vote, a 2005 South Dakota law requiring doctors to misinform women seeking an abortion that they face an increased risk of suicide and suicidal thoughts if they go ahead. This dreadful ruling ignores the overwhelming weight of scientific evidence.