by Max Brantley
A.G.'s must defend state laws. But there's some irony in this case because McDaniel is pro-choice as a matter of political preference. In 2011, his office often made it clear where proposed anti-abortion law strayed from clear federal court precedent. He was much quieter in 2013 in the face of the new Republican anti-abortion majority. Republicans went easier on his office as a result once it became clear he'd vigorously defend whatever woman-punishing legislation they approved.
A federal judge has enjoined the 12-week ban law and is certain to permanently enjoin it after trial. But there's a lingering question. Can a portion of that law, included to provide the ground for the abortion ban, still stand? That is the part that requires any woman seeking an abortion to first have an ultrasound test and to require that a doctor give the woman information on the likelihood of the fetus' survival if a heartbeat is detected.
Sadly, such invasive laws — designed to create an emotional roadblock for a woman who's already made the decision to obtain an abortion — have been upheld. So McDaniel is right when the state argued this week that that part of the law should stand even if the abortion ban is struck down. ACLU lawyers will attempt to argue that the mandatory ultrasound is not severable, because it was integral to the purpose of the law now preliminarily held to be unconstitutional. That's going to be a tough fight to win because the judge has already indicated her inclination to preserve it.
The state's pleading said:
"The informed consent provisions of Act 301 do not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion, and the informed consent provisions further legitimate interests of the state. The informed consent provisions are constitutional as a matter of well-settled law."
No and yes. The ultrasound test and "informed consent" provision are PRECISELY intended to place an obstacle in the path of a woman seeking an abortion. But, yes, the courts have allowed such incursions on women's rights.