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War Against Women Rages On in the Federal Courts

Alexa Kolbi-Molinas,
Deputy Director, ACLU Reproductive Freedom Project
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August 2, 2012

It’s been an interesting few weeks for women’s rights and health in the courts.

First, the Eighth Circuit Court of Appeals ruled that the state can force a doctor to tell a patient that women who have abortions are more likely to commit suicide than those who continue the pregnancy even though all the reputable scientific evidence shows that having an abortion does not increase a woman’s risk of committing suicide. Why? Because the plaintiffs in the case, Planned Parenthood, could not conclusively prove to a scientific certainty that abortion does not lead to suicide. Of course, by this same logic, a doctor could be forced to tell expectant parents that if they have a son, as opposed to a daughter, they run a greater risk of their child growing up to be an axe murderer. More men than women are axe murders. Ergo, according to a majority of the judges on the 8th Circuit, if you have a son, you are more likely than not creating a vicious criminal. I mean, after all, you can’t prove he won’t be an axe murderer, can you?

Next, a Colorado district court held that religious liberty includes the right to force other people to live according to your religious beliefs, even if they disagree with you. In this case, the owners of a secular, for-profit business challenged the Obama administration’s rule requiring insurance plans to cover contraception. The business claimed its religious freedom would be violated unless its employees lacked coverage for birth control. The court agreed, becoming the first court to permit a private business to use religion as an excuse for discriminating against its employees.

And last but certainly not least, an Arizona district court upheld the country’s most extreme, dangerous, and obviously unconstitutional ban. The law would criminalize virtually all abortions after 20 weeks of pregnancy and contains only narrow exceptions for immediate medical emergencies. The Court’s reasoning? If a ban only bans what it says it is going to ban (and doesn’t ban anything it doesn’t say it bans) then it isn’t a ban after all. Thankfully, the Ninth Circuit stepped in and stopped the law from going into effect, so you don’t have to unravel that one.

To be sure, this was an extraordinary week, but I’m not suggesting we give up on the courts after one bad week. Every day judges across the political spectrum apply the law fairly and objectively, regardless of their personal beliefs, protecting us from unconstitutional laws and political overreaching. However, this past week should serve as a reminder that the courts are not a failsafe. We would do well to remember that it’s better to stop our elected leaders from passing bad laws in the first place, rather than wait for salvation from a court decision that might never come.

In fact, we have an opportunity to act in Michigan right now. In the midst of last week’s judicial hullabaloo, the Michigan Senate revived an omnibus anti-abortion bill that could effectively eliminate safe abortion services throughout the state. Michigan governor Rick Snyder has the power to stop this bill dead in its tracks, but he still hasn’t declared his opposition. We still have a chance to let the governor know that women and men throughout Michigan and the entire country are depending on him to do what’s right for women’s health.

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