Media Report On Unconstitutional 20-Week Abortion Bans, Fail To Mention They're Unconstitutional

Media Report On Unconstitutional 20-Week Abortion Bans, Fail To Mention They're Unconstitutional

Blog ››› ››› MEAGAN HATCHER-MAYS

Recent news reports on Republican presidential candidates' current support for pre-viability bans on abortion after 20 weeks have failed to mention that such bans are clearly unconstitutional, and have been repeatedly struck down as such by the courts.

It's no secret that the likely candidates for the Republican 2016 presidential nomination are extremely anti-choice. Sen. Rand Paul (R-KY) was recently in the news for his sponsorship of "personhood" bills that would legally define life at conception, rendering abortion and some forms of birth control the criminal equivalent of murder -- perhaps even without exceptions for rape or incest. With less attention, Paul's potential primary opponents have also staked out far-right positions on American women's access to abortion, and recent reporting indicates their consensus position is coalescing around pre-viability 20-week abortion bans. In addition to Paul, former Florida Governor Jeb Bush, New Jersey Governor Chris Christie,  Sen. Ted Cruz (R-TX), and Sen. Marco Rubio (R-FL) are all reportedly on board with these bans, despite the fact they flout decades of Supreme Court precedent protecting the constitutional right to abortion.

In reporting on these candidates' current lockstep for bans on abortion, however, mainstream media outlets are neglecting to mention that these 20-week measures are blatantly unconstitutional -- despite the fact that some of these same candidates repeatedly emphasize their fidelity to the "rule of law" and the U.S. Constitution.   

In a recent article about Wisconsin Gov. Scott Walker (R), who has yet to officially announce his candidacy, The New York Times noted that Walker's newfound support for a 20-week abortion ban was a "shift in emphasis and tone," but never discussed the constitutional flaw in such bans. USA Today, The Boston Globe, and The Los Angeles Times omitted the same fact in their political coverage of Walker's position on reproductive rights, with the LA Times choosing to describe a 20-week ban in terms of a "sharper-edged tone" rather than the unconstitutional measure it is.

The trend culminated in an April 17 Politico article that called 20-week abortion bans the "new litmus test" for all Republican candidates. While Politico detailed how anti-choice groups are lobbying Republicans to "make 20-week abortion ban[s] a centerpiece of their campaigns," the article never once noted that those bans are unconstitutional. 

But there is much more to the story that "[f]ourteen of the likely GOP candidates already pledged to sign such a law if elected" -- namely, that the 2016 field has apparently decided to campaign on the potential passage of an obviously unconstitutional law.

Not only do 20-week abortion bans disproportionately affect low-income, young women, they are also incompatible with the Supreme Court's rulings in Roe v. Wade and Planned Parenthood v. Casey. Although some states have passed 20-week bans that have gone unchallenged in court, those that have been contested have been struck down as unconstitutional. In 2014, the Ninth Circuit Court of Appeals struck down Arizona's 20-week ban, holding that it was "per se unconstitutional."

As NARAL Pro-Choice America recently explained, these bans don't even attempt to pass constitutional muster:

The Supreme Court has long held that a woman has the unequivocal right to choose abortion care until the point of fetal viability. Under this standard, states may regulate abortion care, but not ban it before viability. Twenty-week abortion bans brazenly challenge the Supreme Court's standards and deliberately attempt to push the law earlier and earlier into a woman's pregnancy.

All 13 states that enacted 20-week bans already had post-viability bans in place at the time. Sponsors of these bans are attempting to lure the court into reopening the issue of legal abortion entirely by moving away from the viability standard established in Roe.

In fact, State Sen. Mike Flood, the author of the Nebraska ban, openly acknowledges that his law "walks away from viability as a standard." Anti-choice strategist Mary Spaulding Balch, attorney for the National Right to Life Committee, also has admitted that: "What I would like to bring to the attention of the court is, there is another line. This new knowledge is something the court has not looked at before and should look at."

Posted In
Elections, Reproductive Rights, Justice & Civil Liberties
Network/Outlet
The New York Times, USA Today, Los Angeles Times
Show/Publication
Politico
Stories/Interests
Courts Matter, 2016 Elections
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