by Max Brantley
Do the plaintiffs have a high likelihood of succeeding on the merits? They do, as Judge Susan Webber Wright telegraphed clearly in her order refusing to dismiss the lawsuit. She referenced so-far ironclad U.S. Supreme Court precedent in two benchmark cases — Roe and Casey.
Do plaintiffs also have proof of irreparable harm if an injunction is not issued, the other key standard to suspend the law? The law doesn't take effect until August. It will indisputably bring irreparable harm to women and doctors who provide abortion services, but that time lag might give the judge some time to mull the inevitable injunction.
Advance coverage in the Democrat-Gazette today included some points worth mentioning.
For one thing, I don't believe it's a certainty that the U.S. Supreme Court WILL take up this law or the North Dakota law that are frontal assaults on Roe. It could let stand the inevitable lower court precedent-based rulings striking down these invasions on women's medical autonomy.
Sen. Jason Rapert also spoke mendaciously as usual in being allowed by the newspaper to say without challenge that 93 percent of abortions kill babies. He might as well have said 100 percent, since he believes there's a baby the moment a zygote forms. Law, medicine and even many religions don't believe a "baby" exists until it is viable outside the womb. That 93 percent figure he cites presumably begins around 5 or 6 weeks, when a heartbeat can be detected. This is months shy of viability, as the 12-week limit is. According to the CDC, fewer than 2 percent of abortions occur after 21 weeks, which is still several weeks shy of fetal viablity.
Finally, I don't think the weight of legal opinion — outside Liberty University legal circles — is that the 2007 decision allowing a prohibition of so-called partial birth abortions opened the door to pre-viability abortion bans. By a 5-4 vote, that 2007 decision that allowed bans on post-viability later-term abortions indeed damaged the notion of an unfettered constitutional right to abortion. But it did nothing to disturb the Roe and Casey rulings that held rights of women paramount to a fetus that can't survive outside the womb. If it does, we ain't seen nothing yet. Bro. Rapert will be back with his 5-week ban, vaginal probes, bans on IUDs and bans on pills that might — might — prevent implantation of a fertilized egg. If they win, the damage to women will be enormous.
Or so my unlearned legal analysis goes.