Is a New Day Dawning in Abortion Litigation?

Bill Saunders has posted an optimistic proposition on the Family Research Council's blog: that "a new day is dawning" in abortion litigation. For decades, abortion negligence and abortion battery plaintiffs have come up against what Constitutional litigator Jay Sekulow calls "the abortion distortion" - a recurring bias in favor of the abortionist at every stage of the proceedings.

It is testimony to the low expectations of anti-abortion activists that Saunders is so elated at the procedural ruling in the South Dakota case that divests a federal district judge there of authority to indefinitely postpone enforcement of a properly enacted state law that requires full disclosure by the abortionist, informed consent by the woman. The Family Research Council was not a party to the lawsuit, but filed an amicus curiae brief.

I would have thought that "a new day dawning" would entail leveling the playing field in malpractice, negligence and battery actions against abortionists, not just upholding modest, unburdensome state regulation of the abortion industry. Here is the text of Saunders' post on the Family Research Council's blog.

A new day is dawning in abortion litigation

Remember Gonzales v. Carhart? That's the Supreme Court decision from last year that upheld the Congressional ban on partial birth abortion. Justice Kennedy wrote the opinion, and lawyers tied themselves up in knots trying to interpret it. Most agree it was a narrow victory for the pro-life cause, but it was a victory. That can be seen in last Friday's decision by the 8th Circuit to allow a South Dakota abortion law to go into effect, a case in which FRC filed a friend of the court brief.

Prior to Gonzales v. Carhart, such laws were routinely struck down before they ever came into binding, legal force. Kennedy specifically noted, however, that this approach (another of the distortions abortion causes to the law) would no longer be followed. If someone wanted to challenge a law as it was applied to them, they could, and the court would decide whether specific provisions of that law, rather than the entire law, violated the Constitution. The 8th Circuit applied that logic to a challenge to South Dakota's law, and allowed the law to go into effect.

The law merely provides that women seeking an abortion should be given complete information about the risks involved, etc, but Planned Parenthood and the abortion industry wanted to stop it at any cost, as usual, regardless of the fact women deserve to receive such information. However, the 8th Circuit rejected their old "business as ususal" approach to litigation concerning abortion and replaced it with some common sense.

A new day is dawning in abortion litigation.