Abortion in the U.S.

Louisiana anti-abortion House Bills 132 & 1264

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Filing of anti-abortion bills in Louisiana:

With the confirmation of two strict constructionist/originalist Justices to the U.S. Supreme Court in early 2006, and the resulting swing of the court's political philosophy to the right, some pro-life advocates see an opportunity to overturn the court's Roe v. Wade ruling. This would allow individual states to criminalize most abortions within their jurisdiction. By 2005-MAR, legislators in about nine states were drafting bills which would criminalize almost all abortions. One was Louisiana.

Louisiana already has a ban on abortions. However, the U.S. Supreme Court declared it unconstitutional in 1992.

On about 2006-MAR-10, Representative Tim Burns filed bill 132 in the Louisiana House. It would criminalize almost all abortions in the state. If it had become law, it would have only gone into effect if the Supreme Court overturns its 1973 Roe v. Wade decision. ₁

Three exceptions would be made:

	An abortion would be allowed if was necessary to save the woman's life.
	An abortion could be performed during the first 13 weeks of any pregnancy that was caused by rape but only if: The rape victim had a doctor prove within five days of the rape that she was not pregnant prior to the rape. The rape victim had reported the rape to the police within seven days of the assault. The abortion is performed within 13 weeks of conception.
	An abortion could be performed during the first 13 weeks of any pregnancy that was caused by incest but only if the crime is reported to the police.

There are provisions in the bill to handle cases where the victim is incapacitated. It is not clear whether a woman would have to be physically incapacitated, emotionally incapacitated or both.

Senator Ben Nevers (D-Bogalusa) sponsored a competing bill, #1264. It would allow abortions only if necessary to same the woman's life.

Neither bill has an exception to allow an abortion if needed to avoid serious health consequences of a continuing pregnancy, or perhaps permanent disability to the woman.

Neither bill was passed by the legislature.

Impact of the Burns bill on emergency contraception:

The Burn's bill includes in its definition of "Abortion" the "administering or prescribing any drug, potion, medicine or any other substance to a female" with the intent of terminating a pregnancy. Unfortunately, although the bill defines many of the terms used in the text, it does not define the term "pregnancy." There are two meanings frequently assigned to this term. Most pro-lifers believe that pregnancy begins at conception. Most medical professionals and pro-choicers believe that pregnancy begins after implantation of the morula in the wall of the uterus.

The bill defines "unborn child" to mean "the unborn offspring of human beings from the moment of conception until birth." Thus some might inferr that the bill considers pregnancy to start at conception. Early in the development of emergency conception (EC) researchers believed that it can prevent a blastocyst -- a pre-embryo -- from implanting in the wall of the woman's uterus. Although this has been shown to be extremely improbable or impossible, many pro-life groups still believe that it can happen. This would make EC an abortifacient -- a pill that ends the life of a pre-embryo. It is possible that this law might be interpreted by the courts as criminalizing the dispensing of what is commonly called "the morning-after pill."

It is unclear whether this ambiguity is accidental, or whether it is an attempt to introduce, by stealth, a provision in the bill to also criminalize the dispensing of emergency contraception. If the law were clearly worded to prohibit the sale of EC in the state, it might not obtain sufficient votes to pass.

Provisions of the Burns bill:

A person found guilty of performing an illegal abortion would be "imprisoned at hard labor" between one and ten years, and fined between 10 and 100 thousand dollars.

Burns allegedly wants the U.S. Supreme Court to consider two anti-abortion laws from different states with different levels of exceptions: the South Dakota law which allows abortions only to save the life of the mother, and his bill which permits some early terminations of pregnancies caused by rape or incest.

A similar law was passed by the legislature 1991. The governor at the time, Buddy Roemer vetoed the bill. The legislature later overrode the veto. However, a federal district judge ruled the law unconstitutional, and the 5th U.S. Circuit Court of Appeals upheld the judge's decision.

It is Burns' assessment that with the recent confirmation of two strict constructionist/originalist Justices to the U.S. Supreme Court, the new court might reverse its 1973 Roe v. Wade Supreme Court decision which permits free access to early abortions. Thus, a restrictive state law such as Burns has proposed may be found constitutional.

The bill was provisionally assigned to the House Criminal Justice Committee and prefiled on 2006-MAR-09.

William Rittenberg, a pro-choice lawyer, noted that "Louisiana is broke now, because of Katrina and Rita. But the Legislature doesn't seem to care how much it costs to 'get' Roe v. Wade. Why does one of the poorer states in the country have to foot the bill?" He suggested that a more expedient route might be to do nothing, and allow the South Dakota law to work its way through the courts. This would avoid the state of Louisiana having to bear the high costs required to defend its law during the inevitable lawsuit.

Provisions of the Nevers bill "Human Life Protection Act:"

Nevers said: "I am very deeply concerned about women who have been raped, or been involved in incest. And my heart goes out to them." However, he opposes exceptions because "abortion is just another crime," like rape.

If this bill becomes law, doctors found guilty of performing abortions would face from one  to ten years in prison at hard labor and fines of $10,000 to $100,000.

The bill defines pregnancy as beginning at fertilization, and defines human personhood as also starting at conception. It does allow the sale of contraceptive devices or drugs "if it is administered prior to the time when a pregnancy could be determined." This would apparently allow the sale of emergency contraceptives.

It allows abortions only to save the life of the woman, or to save the life or health of the fetus.

If the bill becomes law, it would only become effective if Roe v. Wade is first reversed by the U.S. Supreme Court, or an amendment is adopted to the U.S. Constitution that authorizes any state to create laws which prohibit abortion. ₄

Status of the two bills:

As of 2006-APR-20, Senator Burns' bill has not come up for a vote in the Senate Health and Welfare Committee. It appears to be dead.

Senator Nevers' bill passed the committee without changes. However Senator Diana Bajoie (D-New Orleans) wanted the bill changed to remove its sole exception which allowed abortions to save the live of the mother. She said that she objected to the concept of saving the life of a woman if it meant killing a fetus. Senator Lydia Jackson commented: "I think today it is clear how little control women have over their lives." She voted for the bill.

Nevers' bill was voted upon by the full Senate on 2006-APR-26. He told Senator Bajoie that he would attempt to amend the bill to remove the exception clause and make it "more pro-life." It appears that he was not successful. Nevers spoke against an amendment which would have allowed abortions in pregnancies caused by rape or incest victims. He said that his "heart goes out to them." But he felt that the state should force women to give birth if they have become pregnant as a result of a rape or who are victims of incest. He said: "A crime committed by a rapist should not result in the death of an unborn child." The Senate narrowly rejected the amendment by a vote of 17 to 20. They then approved the bill by a vote of 30 to 7. ₅

The House added an amendment to allow abortions when the woman's health faces permanent harm. On 2006-JUN-05, the Senate voted 27 to 0 to approve the amendment. The bill was signed into law by Governor Kathleen Blanco on 2006-JUN-17. She wrote in a statement:

"Today, I signed into law Senate Bill No. 33 by Senator Ben Nevers of Bogalusa. This bill, passed by an overwhelming majority of the Legislature, would prohibit abortion in Louisiana, except when necessary to save the life of the mother...."
 
"I, along with many other pro-life legislators, had hoped this bill would include special protections for women in cases of rape and incest. In the end, these exceptions did not pass, but the central provision of the bill supports and reflects my personal beliefs." ₆

The law would only be able to take effect if:

	The U.S. Constitution is amended to allow states to ban abortion, or if
	The U.S. Supreme Court strikes down their 1973 Roe v. Wade abortion access decision. 7

Related essays:

	Laws restricting abortion in the U.S. and Canada
	Anti-abortion bills in various states
	Roe v. Wade: Its basis; court philosophies; political aspects
	The future battle over women's access to abortion; The impact if Roe v. Wade is overturned

References:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Doug Simpson, "La lawmaker's anti-abortion bill less strict than S. Dakota's," Daily Comment, 2006-MAR-10, at: http://www.dailycomet.com/
2. Rep. Burns, "House Bill #132: Abortion: criminalizes the act of performing an abortion," at: http://legis.state.la.us/
3. "Strict abortion ban moves through Senate committee," Associated Press, 2006-APR, at: http://www.katc.com/
4. Senator Nevers, Senate Bill SB33, "ABORTION: Prohibits abortion, except when necessary to save the life of the mother," at: http://legis.state.la.us/
5. "Senate approves strict ban on abortion for Louisiana," Associated Press, 2006-APR-26, at: http://www.theadvertiser.com/
6. "La. Senate Sends Abortion Ban to Gov.," Associated Press, 2006-JUN-05, at: http://www.washingtonpost.com/
7. Kathleen Blanco, "Governor Blanco signs SB 33," 2006-JUN-17, at: http://www.gov.louisiana.gov/

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Latest update: 2010-JUN-20
Author: B.A. Robinson

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