Paul Benjamin Linton, Northbrook, Ill., letter: Anti-abortion bill hurt anti-abortion cause

NORTHBROOK, Ill. — In his letter, James Kerian claims the North Dakota Senate has “embarrassed itself, the Legislature and the state” by tabling HB 1450, the Defense of Human Life Act (“Senate embarrasses itself and North Dakota,” Page A4, April 16).

I would suggest that the Senate would have embarrassed itself by passing the bill.

HB 1450 would have banned abortions throughout pregnancy except to save the life of the mother. Curiously, Kerian never addresses the constitutionality of the bill. Under controlling Supreme Court precedent, including Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), the states may not prohibit any abortions before viability.

Moreover, there is no reason to believe that Supreme Court Justice Anthony Kennedy — who co-authored the joint opinion in Casey — would vote to uphold a ban on abortions before viability. He reiterated the viability rule in his dissent in the first partial-birth abortion case, Stenberg v. Carhart, 530 U.S. 914 (2000), and in his majority opinion for the court in the second partial-birth abortion case, Gonzales v. Carhart, 550 U.S. 124 (2007).

In the former case, he said, “Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability.” In the latter case, he acknowledged that the federal Partial-Birth Abortion Ban Act would have been unconstitutional if it had prevented pregnant women from obtaining second trimester abortions.

Although it is unlikely the Supreme Court would review an abortion ban such as HB 1450, if it did, it would strike it down.

As an attorney who has been professionally engaged in the pro-life movement for more than 20 years (and has represented members of the North Dakota Legislature in “friend-of-the-court” briefs in the Supreme Court), I do not believe that it is in the interest of the pro-life movement to have Roe reaffirmed yet again, nor is it in the interest of the pro-life movement to force Chief Justice John Roberts and Justice Samuel Alito to declare themselves on whether Roe v. Wade should be overruled before a majority of the Court is ready to overrule Roe.

North Dakota already has a law that would prohibit abortions throughout pregnancy once the Supreme Court restores to the states their rightful authority to legislate in this area.

Until it does (and the present court would not do so), enacting legislation like HB 1450 would be an exercise in futility.

Paul Benjamin Linton

Linton is an attorney who specializes in pro-life litigation and legislative consulting. He is special counsel to the Thomas More Society, a pro-life law center, and has served as general counsel of Americans United for Life.

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