Posted by: bridget | 10 January 2007

Virginia & Georgia Follow S. Dakota Lead

Virginia has introduced HB 2124, which, if Roe v. Wade were overturned, would immediately make abortion within the Commonwealth illegal, except as part of a good-faith effort to save the life of the mother. Georgia has introduced legislation along the lines of the South Dakota abortion ban. Virginia’s law is currently a moot point – it will only be effective if Roe is overturned and states (in our increasingly centralised government) are given full leeway in determining the legality of abortion. Georgia’s law is meant as a direct attack on Roe.

The pachyderm finds it interesting that the Georgia law is so chock-full of sociology and psychological justifications, especially the detrimental effects of abortion on women. Pro-lifers are invading the traditional pro-choice territory of feminism and policy debates, while ignoring the moral/philosophical rationale. The language of the bill echoes of the famous Brandeis brief: relying upon outside, sociological data, the government justifies a radical change of course from current Constitutional jurisprudence. Georgia may also be setting itself up to satisfy a strict scrutiny requirement.

Virginia’s law is interesting in that it gives broad leeway to the methods of producing an abortion (“If any person administers to, or causes to be taken by a woman, any drug or other thing, or uses means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and thereby destroys such child, or produces such abortion or miscarriage,”). The first clause is aimed at RU-486 and, presumably, any other pharmaceutical yet to be invented that causes a miscarriage or an abortion. Virginia will not have to play catch-up, perpetually running behind the latest invention and outlawing its use.

Problems with Virginia Statute: One of the problems with the wording of the language is that a doctor could be penalised for giving a woman life-saving treatment that causes an abortion, or gives her medication that has the rare side effect of producing a miscarriage. The “any drug or other thing” language would only be limited to “and thereby destroys such child…” eliminating the mens rea requirement for producing abortion. Otherwise, it would be read into the next two clauses and would only restrict medical, not surgical, abortions – obviously not the intent of the statute. Sec. 18-2B forbids a person from advertising abortions. While obviously aimed at eliminating back-alley abortions, this section may not pass Constitutional muster. With the lack of a severability clause, a First Amendment challenge to Sec. 18-2B may void the entire statute. Although commercial enterprises receive less protection than political speech, and the Court has hardly endorsed speech aimed at illegal activities, the clause will not hold up. Should abortion be legal anywhere in the United States, speech that encourages the procurement of abortion will have a valid basis.

South Dakota legal ruckus: The Eighth Circuit will hold an en banc rehearing of a 2005 S.D. law that would require abortion providers to tell women that abortion ends a human life, causes psychological problems, and ends the legal relationship between mother and child. Imposition on the exercise of abortion rights and First Amendment rights of physicians? Or, legitimate informed consent law and an attempt to avoid this debacle? Note that the First Amendment has never been found to have trumped informed consent requirements. (From Above the Law.)

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