The New South Dakota Abortion Law: Is The Waiting the Hardest Part?

By Mike Dorf

Last week South Dakota enacted a new law requiring that a woman seeking an abortion wait three days after her initial consultation with a physician before she may obtain the abortion from that same physician.  Because the state apparently has only one clinic that offers non-emergency abortions, and the doctor who performs them comes in from out of state only once a week, the law effectively amounts to a one-week waiting period for an abortion.  Moreover, during the waiting period, the woman must visit a "pregnancy help center," essentially a pro-life organization that will try to persuade her not to have an abortion by, among other things, providing information on the assistance available to her should she decide to carry the pregnancy to term. For news coverage, click here.  For a parodic account of what the relevant counseling involves, see the following clip from Citizen Ruth (warning: contains profanity):

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The SD law does not go into effect immediately and so there is time for the courts to act before it does.  Will it be invalidated?  To begin to answer that question, we should note how an under-developed line of inquiry in the existing case law will frame the litigation.  The core question is this: When the Supreme Court upholds some law against a facial challenge but leaves open the possibility that the same or a similar law could nonetheless be invalid "as applied," what kind of showing must be made for the challenge to the law to succeed?

The 1992 Supreme Court ruling in Planned Parenthood v. Casey upheld, against a facial challenge, Pennsylvania's 24-hour waiting period for women seeking abortions.  As numerous commentators remarked at the time and since, the majority's analysis of the 24-hour waiting period was arguably inconsistent with its analysis of another provision of the law--which required married women seeking abortions to notify their husbands to that effect.  The Court invalidated the husband notification provision on the ground that some women would not notify their husbands because they feared violence.  The Court thus took account of how the husband notification provision would actually work in practice and found it an "undue burden."  By contrast, the Court upheld the 24-hour waiting period even though it was argued that for some women--especially poor women in rural areas with no abortion providers--the requirement of waiting a day would so add to the cost and difficulty of obtaining an abortion that it would be a serious (or "undue") burden.  In rejecting that argument, the Court left open the possibility that a different 24-hour waiting period--or even the same 24-hour waiting period requirement in a different case--could be struck down as applied.

In the nearly two decades since Casey, the Supreme Court has not taken another waiting period case, but the lower courts have not looked favorably on challenges to waiting periods, more or less rejecting the Court's invitation to examine how a 24-hour waiting period operates in practice and assuming that because the Pennsylvania law was upheld in Casey, any 24-hour waiting period would be constitutionally valid.  But what about 72 hours?

It's possible that even on its face a 72-hour waiting period would be invalid, although that may depend on what one means by "on its face."  The Court has long ducked the opportunity to resolve the question of exactly what standard of review applies to facial challenges to abortion laws.  Perhaps more importantly, there seems to be a crucial ambiguity in what the Court even means by "as applied."  In Gonzales v. Carhart, the Court upheld the federal Partial Birth Abortion Ban Act against a facial challenge, but left open the possibility that it could be invalidated as applied.  But Justice Kennedy's opinion was unclear whether the remaining possible challenge would have to involve a particular woman seeking a particular "partial-birth" abortion that her doctor said was medically necessary or whether a doctor could bring a generic as-applied challenge saying that she routinely performed "partial-birth" abortions and was seeking an injunction against the law's enforcement in all circumstances in which it would be invalid as applied because such abortions were medically necessary.  If the Court meant to leave open the possibility of the latter, broader, as-applied challenge, that would in turn raise the issue of how exactly such an as-applied challenge differs from the actual facial challenge the Court rejected in Gonzales v. Carhart.

Presumably the plaintiffs now challenging the South Dakota law will introduce evidence that the three-day waiting period is in reality a one-week waiting period, and assuming the courts credit that evidence, this will raise the question of whether a one-week waiting period is invalid.  Presumably too, the Justices on the Supreme Court who are simply hostile to the abortion right (Scalia and Thomas, at least) would not engage with the question of whether three or seven days is too long: They'd be happy to uphold a nine-month waiting period!  But for the Justices committed to applying the Casey framework (i.e., at least Justice Kennedy), there's got to be some number of days that is too long to make a woman wait for an abortion--especially when one considers the perverse effect: Most people who think abortion is morally problematic but should not invariably be illegal believe that as time goes by, the abortion becomes more problematic because the fetus develops further; thus, long waiting periods convert some number of relatively early abortions into relatively later abortions.

I don't have more to say about the waiting period beyond that.  In a follow-up post, I'll say something about the constitutionality of the mandated counseling.