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Abortion RestrictionsThe Women's Law Project has a stellar record of achievement protecting reproductive freedom in Pennsylvania and elsewhere in the United States. We represented the plaintiffs in three landmark U.S. Supreme Court decisions on reproductive freedom: ACOG v. Thornburgh (1986), Planned Parenthood v. Casey (1992), and Ferguson v. City of Charleston (2001). See more resources and information on abortion restrictions.
Other Resources:
If You Are Pregnant and Seriously Ill (PA Medical Assistance) (November 2002) If You've Been Raped (PA Medical Assistance) (November 2002) Medical Assistance for Abortion in Pennsylvania (November 2002)
Young Women's Guide to Abortion in Pennsylvania guia para las jovenes en cuanto al aborto en Pennsylvania Young Women’s Reproductive Rights in Pennsylvania - More Q&As
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Judge Alito’s Role in Planned Parenthood v. CaseyIn 1989, after years of federal judicial appointments made according to an anti-choice litmus test, conservative state legislators vowed that Pennsylvania would be the first state to send a test case to the U.S. Supreme Court in order to overrule Roe v. Wade. The vehicle for overturning Roe was to be a set of restrictions on abortion guaranteed to be challenged by women’s health care providers. So, in 1988 and 1989, the Pennsylvania legislature passed amendments to the Abortion Control Act that included parental consent, husband notification, mandatory delays, biased abortion counseling, reporting requirements, and a host of other restrictions. The Women’s Law Project served as co-counsel* for a group of Pennsylvania doctors and abortion providers, the plaintiffs in a landmark challenge to the major provisions of this law. The lawsuit was called Planned Parenthood v. Casey and was widely expected to be the case through which the Supreme Court would eliminate the federal constitutional right to legal abortion in America. The husband notification provision - relevant today because of Supreme Court nominee, Judge Samuel Alito’s dissenting opinion - would have required a married woman to sign a form provided by the Commonwealth of Pennsylvania that she had notified her husband of her intended abortion. The form contained a notice that false statements were punishable by law – a misdemeanor of the third degree. A married woman could be exempted from these provisions if (1) she asserted that her husband was not the father; (2) her husband, after diligent effort, could not be located; (3) the pregnancy was a result of spousal sexual assault that had been reported to a law enforcement agency; or (4) the woman had reason to believe that notifying her husband was likely to result in the infliction of bodily injury by her spouse or another individual. Evidence at trial strongly indicated that many domestic violence victims would lose their access to abortion altogether or face further battering as a result of this law. Specifically, the lower court found that the mandatory husband notification provision would have dangerous and potentially deadly consequences for battered women and compared forced notification in an abusive household to giving the husband a hammer with which to beat his wife. Based on this evidence, Judge Daniel Huyett of the U.S. District Court for the Eastern District of Pennsylvania struck down this provision, along with the other challenged provisions, on the ground that they violated women’s right to reproductive privacy under the federal Constitution. On appeal to the U.S. Court of Appeals for the Third Circuit, a majority of the three-member panel agreed that the husband notification provision was unconstitutional, although the appellate panel applied a different test that subjected abortion restrictions to less rigorous scrutiny than the Roe standard. The lone dissenter on the Third Circuit panel was Judge Samuel Alito. He also adopted the less rigorous standard proposed by his colleagues, but unlike them, he voted to uphold the husband notification provision, arguing that it “cannot affect more than about 5% of married women seeking abortions” (because the other 95% would inform their husbands voluntarily). Dismissing the wealth of evidence about the impact of domestic violence on battered women and ignoring the complexities of marital relationships, Judge Alito insisted that the correct place to address these concerns was with the legislature, not the courts. Although claiming that this fact had no impact on his decision, Judge Alito also noted that proof of notification “would be difficult to enforce and easy to evade,” coming close to suggesting that women would or should falsify the notification form, criminal penalties notwithstanding. The women’s clinics turned to the U.S. Supreme Court. In 1992, in an anxiously awaited landmark decision, the Supreme Court upheld most of the Pennsylvania restrictions, with one notable exception: the High Court struck down husband notification, rejecting the approach of Judge Alito. Justices O’Connor, Souter, and Kennedy cited the detailed findings by the trial court that forced husband notification would endanger battered women and keep many of them from getting abortion care. The central message of this portion of the Casey opinion has a distinctly feminist tone: that the Constitution does not permit states to give husbands dominion over their wives; that marriage is an equal partnership; and that forcing wives to notify their husbands of their abortion decision reinforces archaic beliefs about women’s subordinate role that fly in the face of contemporary notions of women’s equality. The Supreme Court’s opinion directly considered and rejected Judge Alito’s methodology for evaluating an abortion restriction’s constitutionality based on the number of women affected by it: “The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects … The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” It is this legacy that is in danger today. *Co-counsel included Katherine Kolbert of ACLU Reproductive Freedom Project (succeeded by the Center for Reproductive Law & Policy), Thomas Zemaitis of Pepper Hamilton & Scheetz, and University of Pennsylvania Law Professor Seth Kreimer. Follow these links for more information: |
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