You are the senior aide to state Senator Jack Lawson in your home state of Setonia. Senator Lawson advises that the American Civil Liberties Union (ACLU) recently filed a federal lawsuit challenging the constitutionality of three provisions of Setonia’s abortion laws. Specifically, the ACLU has challenged the following:

1) Law that prevents state health officials from renewing or issuing licenses to abortion clinics located with 2000 feet of an elementary school.

2) Law that requires physicians performing abortions to complete 10 hours annually of continuing medical education on abortion procedures.

3) Law that requires abortion providers to give every patient a copy of her medical records, regardless of whether the patient requests such records.

Constitutional Law Assignment : Senator Lawson has asked you to research the likelihood of success of the ACLU’s constitutional challenges to each of the three Setonia laws. Specifically, Senator Lawson wants you to prepare a 4-5 page memo addressing the following:

· The legal framework the court will apply to the ACLU’s constitutional challenge to the various abortion laws.

· A summary of the Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt.

· Your analysis of whether the ACLU’s constitutional challenge to each of the three Setonia laws will prevail, particularly given the Supreme Court’s decision in Whole Woman’s Health.

ANSWER

ACLU Challenges to Setonian Abortion Laws

TO: State Senator Jack Lawson

FROM: Senior Aide to State Senator

DATE: 18 October 2020

RE: Analysis of ACLU’s Success of Constitutional Challenge

The question of legalizing abortion continues to be a perennial debate and a source of controversies, with many people remaining neutral on the topical issue while others are supporting and others altogether fighting against abortion legalization. The State governments and leaders’ involvement in developing laws that either legalize or illegalize abortion have been sources of debate from various individuals and organizations such as the American Civil Liberties Union (ACLU) (Tochukwu, 2019). The Setonian Abortion Laws have been passed regarding three main issues, including licenses renewing for physicians performing abortions 2000 feet of elementary schools, medical education on abortion procedures requirements, and medical records on abortion histories. The ACLU challenges the following three Setonian abortion laws, which form the ground for analyzing their success likelihood on the constitutional challenge.

1. Law that prevents state health officials from renewing or issuing licenses to abortion clinics located within 2000 feet of an elementary school.
2. Law that requires physicians performing abortions to complete 10 hours annually of continuing medical education on abortion procedures.
3. Law that requires abortion providers to give every patient a copy of her medical records, regardless of whether the patient requests such records.

Legal Framework

A legal framework involves sets of rules, steps, and procedures established precedent or as an exemplar of common law through which legal cases are determined and judged. A legal framework establishes a system of rules that govern and regulate laws and decision-making when determining and considering cases (Snead, 2018). According to the US constitution regarding abortion, abortion remains legal, but this law stands restricted and varies depending on states. According to Casey, the pre and post-viability legal framework on abortion legalization has been adopted and accommodated by the US Constitution (Snead, 2018). In pre-viability, if the fetus can sufficiently survive outside the mother’s body, the State cannot impose an undue burden on the right to choose abortion. Post-viability means that States can impose abortion regulations with exceptions if conducting an abortion meant saving the mother’s life or health. Many states have passed and adopted stringent abortion restrictions and bans to protect the unborn’s rights, which has been termed as unconstitutional by the Supreme Court.

The Supreme Court has minimally developed any abortion restrictions or limits. The only visible limits and restrictions involve obtaining an abortion, the necessity of informed consent, and parental involvement. Moreover, the federal court limits conducting a partial-birth abortion. Other legal grounds for abortion include the presence where pregnancy is as a result of rape, incest, and where there is fetal impairment (CMP, 2019). These legal frameworks are essential in establishing the legal grounds that will be integrated and apply to the ACLU’s constitutional challenge.  Finally, another legal framework that can be integrated, in this case, are the TRAP laws. Targeted Regulation of Abortion Providers (TRAP) is a toolkit that guides service providers in abortion clinical and surgical centers, policymakers, and advocates on abortion restrictions, resources, and data (GI, 2020).

The Whole Woman’s Health v. Hellerstedt Summary

The Whole Woman’s Health v. Hellerstedt was a constitutional challenge case signed into law in 2013 to the adopted HB 2 Texas laws that aimed to restrict and shutter abortion clinics’ operation in the State. According to the House Bill, all abortion clinics were required to meet hospital-like standards, including the sizes of operating or abortion rooms and the pipelines for anesthesia. Secondly, physicians performing abortions were required to access admitting privileges at hospitals within 30 miles of their abortion clinics. These two major abortion restrictions placed in the Texas state were overturned in 2016 by the Supreme Court (Ura, 2016). The limits would result in closing down many abortion clinics, which would translate in placing an undue burden to over 5.4 million reproduction women’s constitutional abortion rights seeking a pre-viability abortion. Moreover, the facility requirements stated in HB 2 were unnecessary and did not benefit the patients.

Analysis: Law 1

The likelihood of the ACLU winning the constitutional challenge is higher in this law. Primarily, prohibiting and preventing the renewal and issuance of licenses to physicians performing abortions means stopping the operation and shuttering abortion clinics. This case is similar to the Whole Woman’s Health v. Hellerstedt case, in that, prohibiting the licensing will result in the closure of many abortion clinics, which will translate into placing an undue burden to many million-reproduction women’s constitutional abortion rights (Ura, 2016). Most of the abortion clinics within the proximity of schools are probably closest to the residents of Setonian. Hence, closing and shuttering their operations increases the risks of undue burden and impedes a woman’s constitutional abortion rights. Besides, according to the US constitution and federal courts, abortion is legal, and if performed within the stipulated limits, it is a constitutional right for every woman. Secondly, according to the TRAP legal framework, legal, financial, and facility requirement issues that constitute the hostile operating environments are discussed but do not cover the newly developed law on proximity of abortion clinics to elementary schools (Silberstein, 2017). However, if proponents of the law provide sufficient evidence of increased disruptions by the presence of anti-abortion protests, demonstrations, and campaigns that limit public safety for students and disrupts learning, the success rates may reduce. Moreover, suppose statistical evidence is produced that higher abortion numbers are among students from the close school, with a higher pregnancy or abortion-related dropout, success rates will dwindle. Secondly, if abortion clinics do not conform to federal limits, including parental involvement and abortion procedures integrated, in that case, the ACLU can lose the case.

Analysis: Law 2

Primarily, the federal courts guided by the US constitution and the common law legalize safe abortion as a constitutional right for women. Abortion safety is acquired from adequate and effective medical education on abortion and its procedures. Hence, ACLU’s likelihood to win the constitutional challenge of this particular law is minimal and almost none. For quality and safety abortion care in the USA, three essential clinical competencies for abortion providers are imperative, including clinical training, continuing education, and patient preparation (Calogne, Gayle, & Brewster, 2018). In patient preparation, education, counseling, and informed consent are essential in providing high quality and safe abortion services and care. Patients seeking abortion services must be informed and educated on various medical abortion procedures, the partial-birth abortion (dilation and evacuation), and other essential related information (Calogne, Gayle, & Brewster, 2018). Constitutionally challenging this law places the State at lower rates of attaining abortion safety, making it an ironical and losing battle for ACLU since they fight for maximized constitutional abortion rights and safety care.

Analysis: Law 3

This particular law touches on a sensitive matter regarding safe abortion care and services, including confidentiality, consent for use or disclosure, access to medical records, and patient privacy protection. Constitutionally challenging this particular law places ACLU at higher chances of success. In such instances, patient confidentiality is not entirely absolute, as in some cases, and situations require disclosure such as incest, child abuse, neglect, and rape causes of pregnancy and abortion. However, patient consent, which justifies disclosure, is essential when generating and providing medical records. Some patients may want the medical records of abortion; however, for some, the records are an instigator of an open and painful wound that should be respected, if she does not request the records (Tochukwu, 2019). Medical records should be available; however, giving all patients these records without acquiring their consent and acceptance should not be allowed. Just as the federal judges in the Whole Woman’s Health v. Hellerstedt case stated that abortion clinics room requirements placed were unnecessary and did not benefit the patients in any way, it becomes similar and applicable in this law. Whether the patient wants or does not want medical records is both necessary and unnecessary due to the patients’ subjectivity. If she requests the medical records, they should be made available by the abortion clinics or hospitals. However, if she does not ask instead wishes for anonymity and disclosure, that decision should also be respected. Secondly, whether the medical reports are given or not, medically, they do not benefit or alter and influence the patient.

In conclusion, ACLU’s constitutional challenge of the three Setonian abortion laws presents diverse success anticipations. The likelihood of the ACLU winning the constitutional challenge in Law 1 and 3 is higher. However, they are likely to fail and lose in Law 2, as the law maximizes high quality and safe abortion care and services, which is what the federal court, judges, and US constitutions seek to promote while establishing the legality and decriminalization of abortion, making it a safe constitutional right among women.

References

Calogne, B. N., Gayle, H. D., & Brewster, W. R. (2018). Chapter: 3 Essential Clinical Competencies for Abortion Providers. In The Safety and Quality of Abortion Care in the United States (pp. 95-128). Washington, DC: The National Academies Press.

CMP. (2019). Special Report: Partial-Birth Abortion at Planned Parenthood. https://www.centerformedicalprogress.org/human-capital/special-report-partial-birth-abortion-at-planned-parenthood/: The Center for Medical Progress.

1. (2020, October 1). Targeted Regulation of Abortion Providers. Retrieved from Guttmacher Institute: https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers

Silberstein, H. (2017). Taking on TRAP Laws: Protecting Abortion Rights through Property Rights. University of Chicago Legal Forum, https://chicagounbound.uchicago.edu/uclf/vol2017/iss1/28.

Snead, C. (2018, April 13). Abortion in the US: Actually, its laws are among the world’s most permissive. The Irish Times, pp. https://www.irishtimes.com/opinion/abortion-in-the-us-actually-its-laws-are-among-the-world-s-most-permissive-1.3459718.

Tochukwu, E. K. (2019). SHOULD ABORTION BE LEGAL?: CONTROVERSIES AND THE WAY FORWARD. Department of Public Administration and Local Government, https://www.researchgate.net/publication/332873374_SHOULD_ABORTION_BE_LEGAL_CONTROVERSIES_AND_THE_WAY_FORWARD.

Ura, A. (2016, June 27). U.S. Supreme Court Overturns Texas Abortion Restrictions. Retrieved from The Texas Tribune: https://www.texastribune.org/2016/06/27/us-supreme-court-rules-texas-abortion-case/