“The people want Roe to stay.”



Polls asking about support for Roe v. Wade

Polls about Roe v. Wade consistently find that a strong majority of Americans don’t want Roe overturned. Examples:

About seven-in-ten Americans oppose overturning Roe v. Wade, Pew Research, January 3, 2017. “Would you like to see the Supreme Court completely overturn its Roe v. Wade decision, or not?” 69% answered “No, do not overturn.”

Nearly Two-Thirds of Americans Want Roe v. Wade to Stand, Gallup, July 12, 2018. “Would you like to see the Supreme Court overturn its 1973 Roe v. Wade decision concerning abortion, or not?” 64% answered “No, not overturn.”

Support for Roe v. Wade hits new high, NBC, July 23, 2018. “Should Roe v. Wade be overturned?” 71% answered “No, do not overturn.”



Polls asking about the time frame in which abortion should be legal.

Polls that ask about when abortion should be legal (e.g. by trimester or more specific gestational age) find that most Americans–including most people who call themselves pro-choice–increasingly oppose abortion as the pregnancy goes on. Examples:

Americans’ Opinion on Abortion, Marist, January 2018

“Which comes closest to your opinion on abortion: (1) Available to a woman any time during her entire pregnancy, (2) only during the first six months of pregnancy, (3) only during the first three months of pregnancy, (4) only in cases of rape, incest, or to save the life of the mother, (5) only to save the life of the mother, (6) should never be permitted under any circumstances.”

  • 11% of Americans said abortion should be available only during the first six months of pregnancy (including 19% of people who identified as pro-choice)
  • 12% of Americans said abortion should be available anytime during the pregnancy (including 21% of people who identified as pro-choice)
  • In other words, only 23% of Americans (including 40% of pro-choice people) chose options that allowed abortion after the first trimester.

Millennials have a surprising view on later-term abortions, Washington Post, January 31, 2018

“If a ban on abortions after 20 weeks of pregnancy were enacted in the state in which you live, would you support or oppose that policy?”

  • Americans were exactly split, with 46% saying they’d oppose and 46% saying they’d support.
  • 36% of Democrats, 45% of Independents, and 56% of Republicans said they’d support the ban.
  • Strangely, every age demographic was more likely to support than oppose the ban except those aged 65 and older.

Americans’ Support For Abortion Rights Wanes As Pregnancy Progresses, NPR, June 13, 2018

“Gallup finds that 60 percent of Americans believe abortion generally should be legal during the first three months of pregnancy, known as the first trimester. That support drops by more than half, to 28 percent, once a pregnancy reaches the second trimester; it falls to 13 percent in the third trimester, at which point the fetus is often viable with medical support.”

Polls asking about the circumstances under which abortion should be legal.

And polls that ask about why abortion should be legal (e.g. for rape, life of the mother, fetal abnormalities, socioeconomic reasons) find that most Americans think abortion should be legal only for the most dire of reasons, i.e. if the woman was raped or if the pregnancy threatens her life. But those situations constitute less than 5% of all abortions, meaning people think nearly all instances of abortion today should be illegal.

The State of Abortion in the United States, National Right to Life, January 2014

“Which of the following statements most closely describes your own position on the issue of abortion: (1) Abortion should be prohibited in all circumstances; (2) Abortion should be legal only to save the life of the mother; (3) Abortion should be legal only in cases of rape or incest, and to save the life of the mother; (4) Abortion should be legal for any reason, but not after the first three months of pregnancy; (5) Abortion should be legal for any reason, but not after the first six months of pregnancy; or (6) Abortion should be legal for any reason at any time during a woman’s pregnancy.”

  • 53% said abortion should be illegal either (a) in all circumstances, (b) all circumstances except to save the life of the mother, or (c) all circumstances except cases of rape and to save the life of the mother
  • 42% said abortion should be legal for any reason either (a) any time during a woman’s pregnancy, (b) only in the first six months, or (c) only in the first three months (only 22% of Americans thought abortion should be legal for any reason after the first three months.)

Americans’ Opinion on Abortion, Marist, January 2018

“Which comes closest to your opinion on abortion: (1) Available to a woman any time during her entire pregnancy, (2) only during the first six months of pregnancy, (3) only during the first three months of pregnancy, (4) only in cases of rape, incest, or to save the life of the mother, (5) only to save the life of the mother, (6) should never be permitted under any circumstances.”

  • 50% of Americans said abortion should either (a) never be permitted, (b) be permitted only to save the life of the mother, or (c) be permitted only in cases of rape, incest, or to save the life of the mother.
  • When broken down by “pro-life” vs “pro-choice” labels, the same poll found 88% of pro-life people and 19% of pro-choice people held those more restrictive views.

Trimesters Still Key to U.S. Abortion Views, Gallup, June 13, 2018

  • 83% of Americans think abortion should be legal in the 1st trimester if the woman’s life is endangers; 75% say the same for 3rd trimester
  • 77% think abortion should be legal in the 1st trimester if the pregnancy was caused by rape; 52% say the same for 3rd trimester
  • Only 45% think abortion should be legal in the 1st trimester for any reason; 20% say the same for 3rd trimester

Republicans divided over abortion, The Hill, September 6, 2018

“Which comes closest to your views: (1) Abortion should be illegal under all circumstances, (2) abortion should be legal in limited circumstances such as rape, incest, and to save the life of the mother, (3) abortion should be legal under most circumstances until the point of viability (start of the 3rd trimester), or (4) abortion should be legal under all circumstances.”

  • 55% of Americans said abortion should be either illegal in all circumstances or legal in limited circumstances such as rape and to save the life of the mother.
  • When broken down by demographics, the poll found that 44% of Democrats, 51% of Independents, 57% of Millennials, and 71% of Republicans held those more restrictive views.

These poll results are incompatible.


When asked about trimesters, most Americans think abortion should be illegal after the first trimester, which ends at about 13 weeks gestation. Yet when asked about a ban on abortion at 20 weeks (almost 2 months into the 2nd trimester), Americans are evenly split on whether they’d support or oppose such a ban. This implies a large group of Americans think abortion should be illegal after 13 weeks but also oppose a ban at 20 weeks.

More importantly, when asked about Roe v. Wade most Americans want the case upheld. Yet simultaneously most Americans think abortion should be illegal after the first trimester and about half think it should be illegal outside of the hard cases of rape or life of the mother. This implies many Americans want Roe v. Wade upheld but also want abortion restrictions that Roe v. Wade makes impossible.

Roe means abortion can’t be restricted to the first trimester (through the first 13 weeks). It enforces the right to elective abortion until at least viability–that is, Roe protects abortions for non-medical reasons until at least 23 weeks into the pregnancy. Read for yourself:

For the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. 

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother.

That last line is crucial because of the way the Supreme Court defined “health of the mother.” On the same day Roe v. Wade was decided, SCOTUS also ruled in Roe’s companion case, Doe v. Bolton. In Doe, SCOTUS defined health as:

All factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient. All these factors may relate to health.

This broad definition of “health” means post-viability abortion is legal even when both mother and fetus are physically healthy, as long as the physician asserts the abortion is necessary for the woman’s emotional or psychological wellbeing. Such a wide loophole explains why most late-term abortions are elective. In other words, Roe makes it impossible to restrict abortion to only the limited circumstances of rape, incest, or life of the mother.

Americans want Roe upheld because they don’t know what Roe is.

Polls asking about Roe v. Wade either don’t describe the decision at all or describe it vaguely as “relating to abortion” or “establishing a right to an abortion.” But Roe goes far beyond establishing a right to an abortion to establishing a right to non-medically necessary abortion at least through 5 1/2 months of pregnancy and in many cases even later.

Given roughly a third of Americans don’t even know Roe relates to abortion at all, it’s unlikely most people polled realize the extent to which Roe enforces extremely permissive abortion law. If people mistakenly believe overturning Roe would mean outlawing abortion in all circumstances, it makes sense that the same people who think abortion should be permitted in only the first trimester or only very limited circumstances would also answer that Roe should be upheld. It would be interesting to see a poll on Roe that described the decision as “establishing the right to elective abortion up to 5 1/2 months gestation.” I doubt 7 in 10 Americans would support it.

Do you support bans on sex-selective abortions? Or bans on abortions for non-fatal conditions such as Down syndrome? Do you think selective reduction abortions (when a woman is pregnant with multiples but wants only one child) should be outlawed? Are you against the idea of the same women getting repeat abortions? Do you have a problem with elective abortion in the 3rd trimester? Then you should have a problem with Roe v. Wade.

Further reading:

What Do Americans Think About Abortion? Difficult Run, February 26, 2014
Nathaniel Givens explains the drawbacks of polls that ask only whether abortion should be legal, legal most of the time, illegal most of the time, or illegal; Givens further explains why polls are more informative when they ask under what circumstances abortion should be legal.

The Worst Poll Ever on the Roe v. Wade Decision, Townhall, August 14, 2018
Michael New explains why polling on Roe v. Wade is usually flawed because the polls fail to explain (1) the policy implications of Roe v. Wade and (2) the implications of reversing Roe v. Wade. In general people seem to think (1) Roe v. Wade merely establishes a right to abortion, rather than legalizing abortion-on-demand and making it difficult to restrict even late-term abortions and (2) if Roe v. Wade were overturned abortion would be banned, rather than abortion policy being left up to each state.

Hill.TV Conducts a Useful Survey on Americans’ Abortion Views, National Review, September 14, 2018
Michael New goes over the results of The Hill poll (linked above) but also notes the bizarre way The Hill chose to frame those results.

“The people want Roe to stay.”



Polls asking about support for Roe v. Wade

Polls about Roe v. Wade consistently find that a strong majority of Americans don’t want Roe overturned. Examples:

About seven-in-ten Americans oppose overturning Roe v. Wade, Pew Research, January 3, 2017. “Would you like to see the Supreme Court completely overturn its Roe v. Wade decision, or not?” 69% answered “No, do not overturn.”

Nearly Two-Thirds of Americans Want Roe v. Wade to Stand, Gallup, July 12, 2018. “Would you like to see the Supreme Court overturn its 1973 Roe v. Wade decision concerning abortion, or not?” 64% answered “No, not overturn.”

Support for Roe v. Wade hits new high, NBC, July 23, 2018. “Should Roe v. Wade be overturned?” 71% answered “No, do not overturn.”



Polls asking about the time frame in which abortion should be legal.

Polls that ask about when abortion should be legal (e.g. by trimester or more specific gestational age) find that most Americans–including most people who call themselves pro-choice–increasingly oppose abortion as the pregnancy goes on. Examples:

Americans’ Opinion on Abortion, Marist, January 2018

“Which comes closest to your opinion on abortion: (1) Available to a woman any time during her entire pregnancy, (2) only during the first six months of pregnancy, (3) only during the first three months of pregnancy, (4) only in cases of rape, incest, or to save the life of the mother, (5) only to save the life of the mother, (6) should never be permitted under any circumstances.”

  • 11% of Americans said abortion should be available only during the first six months of pregnancy (including 19% of people who identified as pro-choice)
  • 12% of Americans said abortion should be available anytime during the pregnancy (including 21% of people who identified as pro-choice)
  • In other words, only 23% of Americans (including 40% of pro-choice people) chose options that allowed abortion after the first trimester.

Millennials have a surprising view on later-term abortions, Washington Post, January 31, 2018

“If a ban on abortions after 20 weeks of pregnancy were enacted in the state in which you live, would you support or oppose that policy?”

  • Americans were exactly split, with 46% saying they’d oppose and 46% saying they’d support.
  • 36% of Democrats, 45% of Independents, and 56% of Republicans said they’d support the ban.
  • Strangely, every age demographic was more likely to support than oppose the ban except those aged 65 and older.

Americans’ Support For Abortion Rights Wanes As Pregnancy Progresses, NPR, June 13, 2018

“Gallup finds that 60 percent of Americans believe abortion generally should be legal during the first three months of pregnancy, known as the first trimester. That support drops by more than half, to 28 percent, once a pregnancy reaches the second trimester; it falls to 13 percent in the third trimester, at which point the fetus is often viable with medical support.”

Polls asking about the circumstances under which abortion should be legal.

And polls that ask about why abortion should be legal (e.g. for rape, life of the mother, fetal abnormalities, socioeconomic reasons) find that most Americans think abortion should be legal only for the most dire of reasons, i.e. if the woman was raped or if the pregnancy threatens her life. But those situations constitute less than 5% of all abortions, meaning people think nearly all instances of abortion today should be illegal.

The State of Abortion in the United States, National Right to Life, January 2014

“Which of the following statements most closely describes your own position on the issue of abortion: (1) Abortion should be prohibited in all circumstances; (2) Abortion should be legal only to save the life of the mother; (3) Abortion should be legal only in cases of rape or incest, and to save the life of the mother; (4) Abortion should be legal for any reason, but not after the first three months of pregnancy; (5) Abortion should be legal for any reason, but not after the first six months of pregnancy; or (6) Abortion should be legal for any reason at any time during a woman’s pregnancy.”

  • 53% said abortion should be illegal either (a) in all circumstances, (b) all circumstances except to save the life of the mother, or (c) all circumstances except cases of rape and to save the life of the mother
  • 42% said abortion should be legal for any reason either (a) any time during a woman’s pregnancy, (b) only in the first six months, or (c) only in the first three months (only 22% of Americans thought abortion should be legal for any reason after the first three months.)

Americans’ Opinion on Abortion, Marist, January 2018

“Which comes closest to your opinion on abortion: (1) Available to a woman any time during her entire pregnancy, (2) only during the first six months of pregnancy, (3) only during the first three months of pregnancy, (4) only in cases of rape, incest, or to save the life of the mother, (5) only to save the life of the mother, (6) should never be permitted under any circumstances.”

  • 50% of Americans said abortion should either (a) never be permitted, (b) be permitted only to save the life of the mother, or (c) be permitted only in cases of rape, incest, or to save the life of the mother.
  • When broken down by “pro-life” vs “pro-choice” labels, the same poll found 88% of pro-life people and 19% of pro-choice people held those more restrictive views.

Trimesters Still Key to U.S. Abortion Views, Gallup, June 13, 2018

  • 83% of Americans think abortion should be legal in the 1st trimester if the woman’s life is endangers; 75% say the same for 3rd trimester
  • 77% think abortion should be legal in the 1st trimester if the pregnancy was caused by rape; 52% say the same for 3rd trimester
  • Only 45% think abortion should be legal in the 1st trimester for any reason; 20% say the same for 3rd trimester

Republicans divided over abortion, The Hill, September 6, 2018

“Which comes closest to your views: (1) Abortion should be illegal under all circumstances, (2) abortion should be legal in limited circumstances such as rape, incest, and to save the life of the mother, (3) abortion should be legal under most circumstances until the point of viability (start of the 3rd trimester), or (4) abortion should be legal under all circumstances.”

  • 55% of Americans said abortion should be either illegal in all circumstances or legal in limited circumstances such as rape and to save the life of the mother.
  • When broken down by demographics, the poll found that 44% of Democrats, 51% of Independents, 57% of Millennials, and 71% of Republicans held those more restrictive views.

These poll results are incompatible.


When asked about trimesters, most Americans think abortion should be illegal after the first trimester, which ends at about 13 weeks gestation. Yet when asked about a ban on abortion at 20 weeks (almost 2 months into the 2nd trimester), Americans are evenly split on whether they’d support or oppose such a ban. This implies a large group of Americans think abortion should be illegal after 13 weeks but also oppose a ban at 20 weeks.

More importantly, when asked about Roe v. Wade most Americans want the case upheld. Yet simultaneously most Americans think abortion should be illegal after the first trimester and about half think it should be illegal outside of the hard cases of rape or life of the mother. This implies many Americans want Roe v. Wade upheld but also want abortion restrictions that Roe v. Wade makes impossible.

Roe means abortion can’t be restricted to the first trimester (through the first 13 weeks). It enforces the right to elective abortion until at least viability–that is, Roe protects abortions for non-medical reasons until at least 23 weeks into the pregnancy. Read for yourself:

For the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. 

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother.

That last line is crucial because of the way the Supreme Court defined “health of the mother.” On the same day Roe v. Wade was decided, SCOTUS also ruled in Roe’s companion case, Doe v. Bolton. In Doe, SCOTUS defined health as:

All factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient. All these factors may relate to health.

This broad definition of “health” means post-viability abortion is legal even when both mother and fetus are physically healthy, as long as the physician asserts the abortion is necessary for the woman’s emotional or psychological wellbeing. Such a wide loophole explains why most late-term abortions are elective. In other words, Roe makes it impossible to restrict abortion to only the limited circumstances of rape, incest, or life of the mother.

Americans want Roe upheld because they don’t know what Roe is.

Polls asking about Roe v. Wade either don’t describe the decision at all or describe it vaguely as “relating to abortion” or “establishing a right to an abortion.” But Roe goes far beyond establishing a right to an abortion to establishing a right to non-medically necessary abortion at least through 5 1/2 months of pregnancy and in many cases even later.

Given roughly a third of Americans don’t even know Roe relates to abortion at all, it’s unlikely most people polled realize the extent to which Roe enforces extremely permissive abortion law. If people mistakenly believe overturning Roe would mean outlawing abortion in all circumstances, it makes sense that the same people who think abortion should be permitted in only the first trimester or only very limited circumstances would also answer that Roe should be upheld. It would be interesting to see a poll on Roe that described the decision as “establishing the right to elective abortion up to 5 1/2 months gestation.” I doubt 7 in 10 Americans would support it.

Do you support bans on sex-selective abortions? Or bans on abortions for non-fatal conditions such as Down syndrome? Do you think selective reduction abortions (when a woman is pregnant with multiples but wants only one child) should be outlawed? Are you against the idea of the same women getting repeat abortions? Do you have a problem with elective abortion in the 3rd trimester? Then you should have a problem with Roe v. Wade.

Further reading:

What Do Americans Think About Abortion? Difficult Run, February 26, 2014
Nathaniel Givens explains the drawbacks of polls that ask only whether abortion should be legal, legal most of the time, illegal most of the time, or illegal; Givens further explains why polls are more informative when they ask under what circumstances abortion should be legal.

The Worst Poll Ever on the Roe v. Wade Decision, Townhall, August 14, 2018
Michael New explains why polling on Roe v. Wade is usually flawed because the polls fail to explain (1) the policy implications of Roe v. Wade and (2) the implications of reversing Roe v. Wade. In general people seem to think (1) Roe v. Wade merely establishes a right to abortion, rather than legalizing abortion-on-demand and making it difficult to restrict even late-term abortions and (2) if Roe v. Wade were overturned abortion would be banned, rather than abortion policy being left up to each state.

Hill.TV Conducts a Useful Survey on Americans’ Abortion Views, National Review, September 14, 2018
Michael New goes over the results of The Hill poll (linked above) but also notes the bizarre way The Hill chose to frame those results.

Kavanaugh’s Opinion in Doe v. District of Columbia is not pro-abortion

In recent weeks, there have been a few articles in left-leaning media outlets concerning Judge Kavanaugh’s opinion in the case of Doe v. District of Columbia, with some suggesting that the opinion allows coerced abortions on people with disabilities. And to be abundantly clear, support for coerced abortions on people with disabilities would be an immediate deal-breaker for pro-life advocacy groups—which is why I was immediately suspicious of the claim. Doe is a 2007 case. How on earth could the Federalist Society, Heritage Foundation, White House bureaucrats, and all of the the dozens of pro-life organizations with an interest in the next Supreme Court nominee all fail to catch an 11-year-old coerced abortion decision while vetting Kavanaugh?

Last week National Review published a rebuttal which called the Doe controversy a “vicious distortion” of Kavanaugh’s record and helpfully included a link to his opinion. I happen to be a lawyer, so I decided to analyze the Doe opinion myself. With the Kavanaugh hearings beginning today, now is as good a time as any to sort this out.

I won’t keep you in suspense. The Doe case has nothing to do with abortion and the criticism is baseless.

The central issue in Doe was the District of Columbia Department of Disability Services’ procedures to authorize surgeries for a small subset of people whose intellectual disabilities prevent them from making medical decisions. Specifically, the case concerned D.C. residents for whom all of the following are true:

  1. The person lacks capacity, meaning that he or she “lacks sufficient mental capacity to appreciate the nature and
    implications of a health-care decision, make a choice regarding the
    alternatives presented or communicate that choice in an unambiguous
    manner.” The capacity determination must be made by two physicians, at least one of them being a psychiatrist. Not all intellectually disabled people lack capacity under this test.
  2. The person has always lacked capacity, and therefore the District can’t rely on any previously expressed wishes concerning medical treatment.
  3. The person does not have a proxy to make medical decisions for him or her. As stated in the opinion (citations omitted): “D.C. law creates a hierarchy of individuals authorized to make
    healthcare decisions for persons who have been certified … as lacking mental capacity. That list includes, in order of priority: a court-appointed guardian
    or conservator; a spouse or domestic partner; an adult child; a
    parent; an adult sibling; a religious superior, if applicable; a
    close friend; or the nearest living relative. The [Department of Disability Services] Administrator makes healthcare decisions for an incapacitated
    patient only if none of the above individuals is available and willing
    to do so.”
  4. And, last but certainly not least, the potential surgery in question is not an abortion. Again, as stated in the opinion: “The D.C. Code also explicitly provides that abortions, sterilizations,
    and psycho-surgeries may not be authorized, at least absent a court
    order.”

To recap: when a person has a lifelong intellectual disability that has always prevented him or her from appreciating the nature and implications of a healthcare decision, and that person sadly has no guardian, spouse, child, parent, sibling, clergy member, close friend, or living relative to serve as a healthcare decision-maker, and that person has a medical issue that may call for a surgical intervention—other than abortion, sterilization, or psycho-surgery—the Department of Disability Services has to have protocols in place to address all competing considerations and try to reach an outcome that will further the person’s health.

The plaintiffs alleged that those protocols were inadequate and failed to give enough weight to the person’s wishes. The District of Columbia countered that the person’s wishes were impossible to ascertain, and in any event, the protocol did include “efforts to discuss the surgery with the patient at the level of patient comprehension.”

Judge Kavanaugh ruled that the District of Columbia’s protocols were legally sound. If you read the opinion, maybe you’ll agree, and maybe you won’t. It’s a fairly debatable issue. What’s not fair is ignoring the explicit exclusion of abortion in order to paint Kavanaugh as some eugenicist monster.

If pro-choice groups want to find an actual villain, they might look in the mirror: Roe v. Wade itself cites the notorious forced sterilization case of Buck v. Bell with approval.

Kavanaugh’s Opinion in Doe v. District of Columbia is not pro-abortion

In recent weeks, there have been a few articles in left-leaning media outlets concerning Judge Kavanaugh’s opinion in the case of Doe v. District of Columbia, with some suggesting that the opinion allows coerced abortions on people with disabilities. And to be abundantly clear, support for coerced abortions on people with disabilities would be an immediate deal-breaker for pro-life advocacy groups—which is why I was immediately suspicious of the claim. Doe is a 2007 case. How on earth could the Federalist Society, Heritage Foundation, White House bureaucrats, and all of the the dozens of pro-life organizations with an interest in the next Supreme Court nominee all fail to catch an 11-year-old coerced abortion decision while vetting Kavanaugh?

Last week National Review published a rebuttal which called the Doe controversy a “vicious distortion” of Kavanaugh’s record and helpfully included a link to his opinion. I happen to be a lawyer, so I decided to analyze the Doe opinion myself. With the Kavanaugh hearings beginning today, now is as good a time as any to sort this out.

I won’t keep you in suspense. The Doe case has nothing to do with abortion and the criticism is baseless.

The central issue in Doe was the District of Columbia Department of Disability Services’ procedures to authorize surgeries for a small subset of people whose intellectual disabilities prevent them from making medical decisions. Specifically, the case concerned D.C. residents for whom all of the following are true:

  1. The person lacks capacity, meaning that he or she “lacks sufficient mental capacity to appreciate the nature and
    implications of a health-care decision, make a choice regarding the
    alternatives presented or communicate that choice in an unambiguous
    manner.” The capacity determination must be made by two physicians, at least one of them being a psychiatrist. Not all intellectually disabled people lack capacity under this test.
  2. The person has always lacked capacity, and therefore the District can’t rely on any previously expressed wishes concerning medical treatment.
  3. The person does not have a proxy to make medical decisions for him or her. As stated in the opinion (citations omitted): “D.C. law creates a hierarchy of individuals authorized to make
    healthcare decisions for persons who have been certified … as lacking mental capacity. That list includes, in order of priority: a court-appointed guardian
    or conservator; a spouse or domestic partner; an adult child; a
    parent; an adult sibling; a religious superior, if applicable; a
    close friend; or the nearest living relative. The [Department of Disability Services] Administrator makes healthcare decisions for an incapacitated
    patient only if none of the above individuals is available and willing
    to do so.”
  4. And, last but certainly not least, the potential surgery in question is not an abortion. Again, as stated in the opinion: “The D.C. Code also explicitly provides that abortions, sterilizations,
    and psycho-surgeries may not be authorized, at least absent a court
    order.”

To recap: when a person has a lifelong intellectual disability that has always prevented him or her from appreciating the nature and implications of a healthcare decision, and that person sadly has no guardian, spouse, child, parent, sibling, clergy member, close friend, or living relative to serve as a healthcare decision-maker, and that person has a medical issue that may call for a surgical intervention—other than abortion, sterilization, or psycho-surgery—the Department of Disability Services has to have protocols in place to address all competing considerations and try to reach an outcome that will further the person’s health.

The plaintiffs alleged that those protocols were inadequate and failed to give enough weight to the person’s wishes. The District of Columbia countered that the person’s wishes were impossible to ascertain, and in any event, the protocol did include “efforts to discuss the surgery with the patient at the level of patient comprehension.”

Judge Kavanaugh ruled that the District of Columbia’s protocols were legally sound. If you read the opinion, maybe you’ll agree, and maybe you won’t. It’s a fairly debatable issue. What’s not fair is ignoring the explicit exclusion of abortion in order to paint Kavanaugh as some eugenicist monster.

If pro-choice groups want to find an actual villain, they might look in the mirror: Roe v. Wade itself cites the notorious forced sterilization case of Buck v. Bell with approval.

Three takeaways from NIFLA v. Becerra

Yesterday, the Supreme Court handed down a 5-4 decision in favor of the pregnancy centers challenging a California law that required them to post signage advertising state-funded abortion. The majority opinion, which found that the pregnancy centers were protected by the First Amendment, was written by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. The dissent was written by Justice Breyer and joined by Justices Ginsburg, Kagan, and Sotomayor.

The case has been amply covered by media of all stripes, so I’ll just offer a few thoughts.

We desperately need a pro-life woman on the Court. All three women Justices—who I should note are past childbearing age and come from high-SES families—shamefully voted against the charities that aid low-income mothers in crisis. Already, pro-abortion groups are touting the sad fact that the Court’s free speech supporters are all male. This must change. If you haven’t already done so, sign the #NextNominee petition to make our next Justice a pro-life woman! A vacancy could come any day.

The central disagreement was how to apply Casey. In the 1992 case of Planned Parenthood v. Casey, the Court held that states could require abortion businesses to disclose the procedure’s risks and alternatives without running afoul of the First Amendment. Abortion supporters argued that California’s law was analogous to the law in Casey. I previously offered my counter-argument, which I’m pleased to see is similar to the majority ruling:

The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice.

The dissent’s counter-argument rests on the claim that childbirth, like abortion, is a “medical procedure that involves certain health risks.” Without getting into the longstanding feminist debate over the medicalization of childbirth, the notion that birth is a medical procedure is certainly news to all the mothers who’ve given birth without the involvement of any medical professional whatsoever. And while no one doubts that childbirth has risks, going to a pregnancy center does not in any way increase those preexisting risks; if anything, it decreases them by giving women access to free ultrasound exams and other resources. By contrast, the risks of abortion are the creation of the abortionist, and therefore the abortionist should bear the burden of explaining those risks.

Justice Kennedy’s concurrence stole the show. The majority did not explicitly rule on the question of whether California’s law was meant to discriminate against pro-life people (i.e., unconstitutional viewpoint discrimination), but of course it was. The Justices in the majority debunked the neutral rationales California put forward; for instance, they saw through the argument that California just wants to educate low-income women, noting that if that were the true motivation, the law would not have exempted most clinics that serve the poor.

But Justice Kennedy took it a step further in his concurring opinion, which was joined by all the majority Justices save Thomas (emphasis mine):

This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. See ante, at 6, n. 2. The Court, in my view, is correct not to reach this question. It was not sufficiently developed, and the rationale for the Court’s decision today suffices to resolve the case. And had the Court’s analysis been confined to viewpoint discrimination, some legislators might have inferred that if the law were reenacted with a broader base and broader coverage it then would be upheld.

It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Check out that last sentence. Four Supreme Court Justices just acknowledged that an anti-abortion stance can be based on philosophical and ethical precepts rather than just religious ones! Go us!

P.S.: Want more NIFLA v. Becerra coverage? NIFLA itself is holding a webcast tomorrow night.

Three takeaways from NIFLA v. Becerra

Yesterday, the Supreme Court handed down a 5-4 decision in favor of the pregnancy centers challenging a California law that required them to post signage advertising state-funded abortion. The majority opinion, which found that the pregnancy centers were protected by the First Amendment, was written by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. The dissent was written by Justice Breyer and joined by Justices Ginsburg, Kagan, and Sotomayor.

The case has been amply covered by media of all stripes, so I’ll just offer a few thoughts.

We desperately need a pro-life woman on the Court. All three women Justices—who I should note are past childbearing age and come from high-SES families—shamefully voted against the charities that aid low-income mothers in crisis. Already, pro-abortion groups are touting the sad fact that the Court’s free speech supporters are all male. This must change. If you haven’t already done so, sign the #NextNominee petition to make our next Justice a pro-life woman! A vacancy could come any day.

The central disagreement was how to apply Casey. In the 1992 case of Planned Parenthood v. Casey, the Court held that states could require abortion businesses to disclose the procedure’s risks and alternatives without running afoul of the First Amendment. Abortion supporters argued that California’s law was analogous to the law in Casey. I previously offered my counter-argument, which I’m pleased to see is similar to the majority ruling:

The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice.

The dissent’s counter-argument rests on the claim that childbirth, like abortion, is a “medical procedure that involves certain health risks.” Without getting into the longstanding feminist debate over the medicalization of childbirth, the notion that birth is a medical procedure is certainly news to all the mothers who’ve given birth without the involvement of any medical professional whatsoever. And while no one doubts that childbirth has risks, going to a pregnancy center does not in any way increase those preexisting risks; if anything, it decreases them by giving women access to free ultrasound exams and other resources. By contrast, the risks of abortion are the creation of the abortionist, and therefore the abortionist should bear the burden of explaining those risks.

Justice Kennedy’s concurrence stole the show. The majority did not explicitly rule on the question of whether California’s law was meant to discriminate against pro-life people (i.e., unconstitutional viewpoint discrimination), but of course it was. The Justices in the majority debunked the neutral rationales California put forward; for instance, they saw through the argument that California just wants to educate low-income women, noting that if that were the true motivation, the law would not have exempted most clinics that serve the poor.

But Justice Kennedy took it a step further in his concurring opinion, which was joined by all the majority Justices save Thomas (emphasis mine):

This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. See ante, at 6, n. 2. The Court, in my view, is correct not to reach this question. It was not sufficiently developed, and the rationale for the Court’s decision today suffices to resolve the case. And had the Court’s analysis been confined to viewpoint discrimination, some legislators might have inferred that if the law were reenacted with a broader base and broader coverage it then would be upheld.

It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Check out that last sentence. Four Supreme Court Justices just acknowledged that an anti-abortion stance can be based on philosophical and ethical precepts rather than just religious ones! Go us!

P.S.: Want more NIFLA v. Becerra coverage? NIFLA itself is holding a webcast tomorrow night.

Permanently Protect Our Conscience Rights and Support Student Mothers: Oppose Senate Bill 320

Following the tumultuous social events of summer 2017, San Jose State University President Mary A. Papazian sought to reassure San Jose State students during her opening semester address stating, “As a civilized, caring community, we condemn this outrageous, indefensible behavior while affirming our commitment to inclusion, diversity, equity, and respect for individual differences.” A new law being considered at this very moment in our state capital challenges the spirit of Pres Papazian’s call for “respect for individual differences.” This law, Senate Bill 320 or SB 320, would require on-campus student health insurance plans offered by California State University, the California Community Colleges and the University of California to include coverage of the abortion pill, which can be taken up to 10 weeks after a woman’s last period. And without additional safeguards for conscience, SB 320 may one day require all SJSU students, including pro-lifers, to directly fund chemical abortions. The bill will also turn our collectively used Student Health Center into an on-campus abortion center.

This law is deeply offensive to the conscience rights of many SJSU students and is bad policy for the women and community of SJSU. A 2016 poll “found that 53 percent of college aged Americans believe abortion should be illegal in at least most circumstances… That is up 9 percentage points from a 2012 survey conducted by Students for Life, which found 44 percent of 18- to 24-year-olds tended to back pro-life policies and 44 percent pro-choice policies.” These gains in pro-life support come even as these same young voters are overwhelmingly liberal on social issues such as same-sex marriage and drug legalization. Assuming SJSU is representative of college age opposition to abortion, over 15,000 pro-life SJSU students may be forced to fund abortions on campus through required student fees. Abortion advocates constantly argue that abortion is a decision between a woman and her doctor. Why, then, should the law require the student body to become involved?

San Jose State University students protest SB 320

Some supporters of SB 320 contend that these concerns are unwarranted because amended language in SB 320 states that “private moneys” will fund the program. Pro-life students have several issues with this. First, the original language of SB 320 did not include any such provision; the “private moneys” amendments were only added after political pressure from pro-life activists. Second, even this particular language of the bill does not provide for permanent conscience protections. The exact language states: “Nothing in this chapter shall be interpreted as requiring public universities to support implementation of abortion by medication techniques with General Fund appropriations or student fees” (emphasis mine). Therefore, nothing in SB 320 guarantees protection of student fees from forthcoming additions to SB 320 which may alter the funding mechanism, or from overzealous pro-abortion university administrators who wish to divert student fees toward the SB 320 program. Lastly, pro-life students contend that student fee funding for the student health centers is inseparable from the provision of the implementation of SB 320. The overarching infrastructure and employees that will be used to distribute the abortion medication is paid for by student fees, regardless if the medication itself is privately funded or not. Money is fungible and therefore student fees can still be used even indirectly in the implementation of SB 320.

Bills such as SB 320 directly and intentionally circumvent federal conscience protections against the funding of abortion and invent out of whole cloth a positive right to state- or university-funded abortions. The Supreme Court has twice ruled in favor of taxpayer conscience protections like the Hyde Amendment, ruling in favor of the constitutionality of restricting public funding for abortions. In the 1979 case Maher v. Roe, the Court ruled that Roe v. Wade does not establish a woman’s right to a free abortion, holding that Roe v. Wade “did not declare an unqualified ‘constitutional right to an abortion’” and “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” The court reiterated that position the following year in Harris v McRae, stating: “The funding restrictions of the Hyde Amendment do not impinge on the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy.”

In essence the Court ruled that “regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Roe v. Wade, it does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

Despite the Hyde Amendment protections and the aforementioned judicial rulings, 17 states including California use taxpayer funds to fund abortion. According to a September 2016 report, California’s Medicaid program (Medi-Cal) spent more than $27 million on more than 83,000 induced abortions in 2014. According to California’s Department of Health and Human Services, Medi-Cal provides abortions “regardless of the gestational age of the fetus” and, furthermore, “medical justification and authorization” are “not required.”

The move toward bills such as SB 320, which lack strict explicitly articulated conscience rights of students, is the latest attempt to circumvent the Hyde Amendment’s conscience protections and is yet another indicator that the abortion lobby is moving away from their slogan of “safe, legal, and rare,” to a policy of “any time, for any reason, at no cost.” We at Spartans for Life believe abortion is never void of costs. Abortion is an act of violence which costs a child a lifetime of potential, costs a mother and father the joys of parenthood, and costs our campus community a proper respect for life.

SB 320 offers no choice for a campus pro-life community and no real choice for our pregnant students. SB 320 offers a choice between choosing between one’s education and one’s child. This is not “choice,” this is not “empowering,” this is not “feminist,” and this is certainly not “respecting our differences.” We at Spartans for Life believe California can do better. We believe that women can do anything they set their minds to. We believe all student fees would be better served aiding our pregnant Spartans in being both mothers and students. We believe this policy represents real choice for all our students. As such, we respectfully ask our campus community to make their voices heard and vocally oppose SB 320’s implementation across our state.


[Today’s guest post is by Nick Reynosa. He is a student at San Jose State.]

Permanently Protect Our Conscience Rights and Support Student Mothers: Oppose Senate Bill 320

Following the tumultuous social events of summer 2017, San Jose State University President Mary A. Papazian sought to reassure San Jose State students during her opening semester address stating, “As a civilized, caring community, we condemn this outrageous, indefensible behavior while affirming our commitment to inclusion, diversity, equity, and respect for individual differences.” A new law being considered at this very moment in our state capital challenges the spirit of Pres Papazian’s call for “respect for individual differences.” This law, Senate Bill 320 or SB 320, would require on-campus student health insurance plans offered by California State University, the California Community Colleges and the University of California to include coverage of the abortion pill, which can be taken up to 10 weeks after a woman’s last period. And without additional safeguards for conscience, SB 320 may one day require all SJSU students, including pro-lifers, to directly fund chemical abortions. The bill will also turn our collectively used Student Health Center into an on-campus abortion center.

This law is deeply offensive to the conscience rights of many SJSU students and is bad policy for the women and community of SJSU. A 2016 poll “found that 53 percent of college aged Americans believe abortion should be illegal in at least most circumstances… That is up 9 percentage points from a 2012 survey conducted by Students for Life, which found 44 percent of 18- to 24-year-olds tended to back pro-life policies and 44 percent pro-choice policies.” These gains in pro-life support come even as these same young voters are overwhelmingly liberal on social issues such as same-sex marriage and drug legalization. Assuming SJSU is representative of college age opposition to abortion, over 15,000 pro-life SJSU students may be forced to fund abortions on campus through required student fees. Abortion advocates constantly argue that abortion is a decision between a woman and her doctor. Why, then, should the law require the student body to become involved?

San Jose State University students protest SB 320

Some supporters of SB 320 contend that these concerns are unwarranted because amended language in SB 320 states that “private moneys” will fund the program. Pro-life students have several issues with this. First, the original language of SB 320 did not include any such provision; the “private moneys” amendments were only added after political pressure from pro-life activists. Second, even this particular language of the bill does not provide for permanent conscience protections. The exact language states: “Nothing in this chapter shall be interpreted as requiring public universities to support implementation of abortion by medication techniques with General Fund appropriations or student fees” (emphasis mine). Therefore, nothing in SB 320 guarantees protection of student fees from forthcoming additions to SB 320 which may alter the funding mechanism, or from overzealous pro-abortion university administrators who wish to divert student fees toward the SB 320 program. Lastly, pro-life students contend that student fee funding for the student health centers is inseparable from the provision of the implementation of SB 320. The overarching infrastructure and employees that will be used to distribute the abortion medication is paid for by student fees, regardless if the medication itself is privately funded or not. Money is fungible and therefore student fees can still be used even indirectly in the implementation of SB 320.

Bills such as SB 320 directly and intentionally circumvent federal conscience protections against the funding of abortion and invent out of whole cloth a positive right to state- or university-funded abortions. The Supreme Court has twice ruled in favor of taxpayer conscience protections like the Hyde Amendment, ruling in favor of the constitutionality of restricting public funding for abortions. In the 1979 case Maher v. Roe, the Court ruled that Roe v. Wade does not establish a woman’s right to a free abortion, holding that Roe v. Wade “did not declare an unqualified ‘constitutional right to an abortion’” and “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” The court reiterated that position the following year in Harris v McRae, stating: “The funding restrictions of the Hyde Amendment do not impinge on the ‘liberty’ protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy.”

In essence the Court ruled that “regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Roe v. Wade, it does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

Despite the Hyde Amendment protections and the aforementioned judicial rulings, 17 states including California use taxpayer funds to fund abortion. According to a September 2016 report, California’s Medicaid program (Medi-Cal) spent more than $27 million on more than 83,000 induced abortions in 2014. According to California’s Department of Health and Human Services, Medi-Cal provides abortions “regardless of the gestational age of the fetus” and, furthermore, “medical justification and authorization” are “not required.”

The move toward bills such as SB 320, which lack strict explicitly articulated conscience rights of students, is the latest attempt to circumvent the Hyde Amendment’s conscience protections and is yet another indicator that the abortion lobby is moving away from their slogan of “safe, legal, and rare,” to a policy of “any time, for any reason, at no cost.” We at Spartans for Life believe abortion is never void of costs. Abortion is an act of violence which costs a child a lifetime of potential, costs a mother and father the joys of parenthood, and costs our campus community a proper respect for life.

SB 320 offers no choice for a campus pro-life community and no real choice for our pregnant students. SB 320 offers a choice between choosing between one’s education and one’s child. This is not “choice,” this is not “empowering,” this is not “feminist,” and this is certainly not “respecting our differences.” We at Spartans for Life believe California can do better. We believe that women can do anything they set their minds to. We believe all student fees would be better served aiding our pregnant Spartans in being both mothers and students. We believe this policy represents real choice for all our students. As such, we respectfully ask our campus community to make their voices heard and vocally oppose SB 320’s implementation across our state.


[Today’s guest post is by Nick Reynosa. He is a student at San Jose State.]

Down Syndrome Abortion and the Courts

Above: Down Syndrome advocate Frank Stephens testifies before Congress

Last month, Ohio passed a law to prohibit doctors from committing abortions sought in response to a prenatal diagnosis of Down Syndrome. Ohio is the third state to pass such a law. North Dakota was the first to do so; there, enforcement is made easier by the fact that there is only one abortion vendor in North Dakota, and it has not sued to overturn the law. The abortion industry did sue over Indiana’s ban on abortion for Down Syndrome, and Judge Pratt of the U.S. District Court for the Southern District of Indiana struck it down in September; that ruling is now under appeal. A lawsuit seems likely in Ohio as well.

The ideal outcome would be for the Indiana and/or Ohio laws to be reviewed by a pro-life Supreme Court, which could use them as a vehicle to reverse Roe v. Wade and Planned Parenthood v. Casey. But we do not have a pro-life Supreme Court, and we cannot count on an anti-unborn Justice’s death or retirement to give us a pro-life Supreme Court during the time it will take Down Syndrome abortion bans to work their way up the judicial ladder.

This leaves the alternative path that the pro-life movement has pursued for decades: craft arguments to appeal to Justice Kennedy, who won’t overturn Roe but is prepared to accept the legality of at least some limits on abortion. It is Justice Kennedy who provided the deciding vote in favor of the partial-birth abortion ban, among other pro-life victories. However, he ruled against us in the fight to regulate abortion businesses like the medical facilities they claim to be.

How might Justice Kennedy rule in favor of Down Syndrome abortion bans? Simple: point out that they do not impact the core rationale of Roe v. Wade and Planned Parenthood v. Casey.

Judge Pratt’s ruling in the Indiana case, while unfavorable, did a good job of summarizing this position:

The State’s argument begins with the woman’s liberty interest as articulated in Casey: “the right of the individual … to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Filing No. 76 at 26, citing Casey, 505 U.S. at 851 (emphasis added)). According to the State, “both the woman’s rights and the State’s interests are different if the pregnant woman decides she wants a baby generally, but not the particular baby she happens to be carrying. A woman has already decided to bear a child. Although her privacy and liberty interests have not completely evaporated, those rights are not as central as they once were.”

Judge Pratt rejected this argument, stating that the right to privacy prohibits any state “examination” of the “basis for a woman’s choice to make this private, personal and difficult decision.” But Judge Pratt’s reasoning proves far too much. It would render unconstitutional numerous state laws banning coerced abortion and requiring abortion businesses to screen for coercion, because coercion is a “basis” that the state “examines.” And laws requiring informed consent before an abortion can be committed—which the Supreme Court has upheld—could be seen as banning abortions sought solely on the basis of ignorance (e.g., the mistaken belief that an unborn child is “just a clump of cells”).

And if a woman has the right to choose not only whether to have a child, but what kind of child to have, wouldn’t that require all states to permit wrongful birth lawsuits to enforce that supposed right? Many states prohibit wrongful birth lawsuits, for very good reasons.

These arguments give Justice Kennedy a way to uphold bans on abortion on the basis of Down Syndrome, without upending his prior abortion jurisprudence. In plain English, he can do the right thing for children with Down Syndrome and still save face.

Down Syndrome Abortion and the Courts

Above: Down Syndrome advocate Frank Stephens testifies before Congress

Last month, Ohio passed a law to prohibit doctors from committing abortions sought in response to a prenatal diagnosis of Down Syndrome. Ohio is the third state to pass such a law. North Dakota was the first to do so; there, enforcement is made easier by the fact that there is only one abortion vendor in North Dakota, and it has not sued to overturn the law. The abortion industry did sue over Indiana’s ban on abortion for Down Syndrome, and Judge Pratt of the U.S. District Court for the Southern District of Indiana struck it down in September; that ruling is now under appeal. A lawsuit seems likely in Ohio as well.

The ideal outcome would be for the Indiana and/or Ohio laws to be reviewed by a pro-life Supreme Court, which could use them as a vehicle to reverse Roe v. Wade and Planned Parenthood v. Casey. But we do not have a pro-life Supreme Court, and we cannot count on an anti-unborn Justice’s death or retirement to give us a pro-life Supreme Court during the time it will take Down Syndrome abortion bans to work their way up the judicial ladder.

This leaves the alternative path that the pro-life movement has pursued for decades: craft arguments to appeal to Justice Kennedy, who won’t overturn Roe but is prepared to accept the legality of at least some limits on abortion. It is Justice Kennedy who provided the deciding vote in favor of the partial-birth abortion ban, among other pro-life victories. However, he ruled against us in the fight to regulate abortion businesses like the medical facilities they claim to be.

How might Justice Kennedy rule in favor of Down Syndrome abortion bans? Simple: point out that they do not impact the core rationale of Roe v. Wade and Planned Parenthood v. Casey.

Judge Pratt’s ruling in the Indiana case, while unfavorable, did a good job of summarizing this position:

The State’s argument begins with the woman’s liberty interest as articulated in Casey: “the right of the individual … to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Filing No. 76 at 26, citing Casey, 505 U.S. at 851 (emphasis added)). According to the State, “both the woman’s rights and the State’s interests are different if the pregnant woman decides she wants a baby generally, but not the particular baby she happens to be carrying. A woman has already decided to bear a child. Although her privacy and liberty interests have not completely evaporated, those rights are not as central as they once were.”

Judge Pratt rejected this argument, stating that the right to privacy prohibits any state “examination” of the “basis for a woman’s choice to make this private, personal and difficult decision.” But Judge Pratt’s reasoning proves far too much. It would render unconstitutional numerous state laws banning coerced abortion and requiring abortion businesses to screen for coercion, because coercion is a “basis” that the state “examines.” And laws requiring informed consent before an abortion can be committed—which the Supreme Court has upheld—could be seen as banning abortions sought solely on the basis of ignorance (e.g., the mistaken belief that an unborn child is “just a clump of cells”).

And if a woman has the right to choose not only whether to have a child, but what kind of child to have, wouldn’t that require all states to permit wrongful birth lawsuits to enforce that supposed right? Many states prohibit wrongful birth lawsuits, for very good reasons.

These arguments give Justice Kennedy a way to uphold bans on abortion on the basis of Down Syndrome, without upending his prior abortion jurisprudence. In plain English, he can do the right thing for children with Down Syndrome and still save face.