On Tuesday, Judge William Osteen of the U.S. District Court for the Middle District of North Carolina issued an opinion declaring unconstitutional North Carolina’s 20-week abortion ban.
CNN reports:
The ban in question, according to Osteen’s opinion, comes from a 1973 North Carolina law that the state Legislature amended in recent years.
North Carolina is far from alone in having regulations that limit abortion, and the ruling against its recently modified, but decades-old, ban came as states around the country have sought to impose greater limits on a woman’s right to abortion. These moves, in turn, have led to increased legal fights, for example, over bills that would ban women from obtaining abortions when fetal heartbeats can be detected.
Referencing Supreme Court precedent, including the landmark Roe v. Wade ruling in 1973, Osteen declared that North Carolina’s ban on abortions after 20 weeks of pregnancy violates the Constitution.
Changes made to the underlying law in 2016 “imposed substantial reporting obligations on abortion providers for any abortion performed after sixteen weeks, expanded the universe of medical facilities from which information is collected, restricted the type of doctor who may perform an abortion in the state, and lengthened the informed consent waiting period from 24 to 72 hours,” Osteen wrote, according to NBC News.
Notwithstanding Judge Osteen’s diktat, however, prevailing U.S. Supreme Court abortion precedent allows a large role for the states in protecting fetal life. Consider the lead opinion from the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the abortion “right” fabricated by Roe in 1973 but also emphasized the states’ interest in “promoting prenatal life”:
A logical reading of the central holding in Roe itself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all pre-viability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation, it misconceives the nature of the pregnant woman’s interest; and in practice, it undervalues the State’s interest in potential life, as recognized in Roe.
Many conservatives, such as David French of National Review and Nate Madden of Conservative Review, believe that the Supreme Court is bound to soon hear a landmark abortion case. “The number of new laws passing may well signal that bombardment is under way,” Madden wrote yesterday.
In an op-ed last month, however, I criticized the institutional pro-life movement for its seeming over-reliance on achieving its ends via the irredeemably flawed federal courts.
How much longer are we willing to wait this out? How many more unborn children must die before we change course?
Of course, this intrinsic fetishization of and sycophancy toward the judiciary from the pro-life and “legal conservative” movements also has the paradoxical effect of grotesquely exalting judges and thereby metastasizing our crisis of judicial supremacy — an anti-republican distortion of our tripartite separation of powers construct… Indeed, it is ultimately impossible to disentangle the failures of the pro-life movement from the judicial supremacy quagmire. At this point, the fair-minded observer must concede that to be notionally “pro-life” while paying homage to judicial supremacy is an intellectual contradiction in terms.