Anthony Kennedy

Energized by gains made by Republicans not only in congressional elections but also in gubernatorial and legislative races, anti-choice organizations are gearing up plans to push new laws restricting women’s right to choose. Already, anti-choice groups hope for more states to replicate Oklahoma’s new law, which compels women seeking to terminate their pregnancies to watch an ultrasound monitor and have a doctor read a state-specified script about the fetus. Slate’s Emily Bazelon writes that Oklahoma’s law stands “at the top of the heap of paternalism that Justice Anthony Kennedy started climbing two years ago, in his opinion in Gonzales v. Carhart,” which upheld the federal ban on late-term abortion. Kennedy “injected into that case the constitutionally novel idea that because some women come to regret their abortions, the court could substitute its judgment for their doctors’ by sparing them from a procedure that women would reject as too gruesome if they only knew the details.”

Now, anti-choice groups hope to use the 2007 decision in Gonzales v. Carhart to advance more restrictive laws across the country. Robert Barnes of the Washington Post reports that anti-choice legislators in Nebraska, led by Speaker Mike Flood, used “that decision as a road map” to ban abortion after 20 weeks without health exceptions. “The importance of Flood's bill is likely to be felt far beyond Nebraska,” writes Barnes, as “abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents that restrict government’s ability to prohibit abortion before a fetus can survive outside the womb.” Barnes writes:

The importance of Flood's bill is likely to be felt far beyond Nebraska. Abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents that restrict government’s ability to prohibit abortion before a fetus can survive outside the womb.

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“Many in the pro-life movement have become very pragmatic when it comes to the court: “Can you count to five?’” said Mary Spaulding Balch, director of state legislation for the National Right to Life Committee. “With the Gonzales decision, we were happy to see that we could.”

The justices have not revisited the issue of abortion since, but the decision has emboldened state legislators to pass an increasing number and variety of restrictions in hopes that a changed court will uphold them.

“I believe the decision was like planting a bunch of seeds, and we're just starting to see the shoots popping out of the ground,” said Roger Evans, who is in charge of litigation for Planned Parenthood of America.

The Center for Reproductive Rights concluded that in 2010, state legislatures “considered and enacted some of the most extreme restrictions on abortion in recent memory, as well as passing laws creating dozens of other significant new hurdles.”

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“We can't say with any certainty that this is going to meet constitutional muster,” said Nebraska Right to Life Executive Director Julie Schmit-Albin. “But you know what, from our perspective, if we aren't bucking up against Roe, we're not doing our job.”

Already, legislators in Iowa, Kentucky, and Indiana are marshalling support for legislation which imitates Nebraska’s restrictive new law, and “abortion opponents are pushing lawmakers in Kansas, Maryland and Oklahoma to do the same.”

In Alaska, anti-choice groups also pressured the governor to resist a judge’s decision that significantly weakened a parental notification law. A federal judge recently threw out parts of a parental notification law that was approved by voters on the same day of the contentious Miller/Murkowski Republican primary in August. According to the Associated Press, the judge “removed provisions calling for a fine of up to $1,000 and imprisonment of up to five years for people who knowingly violate the law” and also made notification easier to obtain and “ struck a section allowing physicians to be liable for damages.”

Jim Minnery of the far-right Alaska Family Council condemned the decision, saying, “We totally opposed his decision to neuter or take the teeth from the law by eliminating all the legal civil penalties for violating the law.” Now, Alaska Governor Sean Parnell filed a motion to reconsider in order to defend a law he claims “reflects the will of the people.”