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Washington DC: Staging Ground for Ending Legal Access to Abortion?

An attack on DC's women is also a stealth attack on abortion rights for the whole nation.

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Each state used the same basic bill, drafted by the National Right to Life Committee and shopped around to willing sponsors. With multiple states passing legislation, the likelihood for a court challenge would increase. And, should the law get struck down as unconstitutional in one state, an appeal to a federal district court could bring a different outcome. Continue the appeals process and get a differing verdict in a different court circuit, and a trip to the Supreme Court is guaranteed.

This is the outcome the anti-choice groups have been eagerly trying to provoke, and the pro-choice organizations have been treading lightly around.

"I think they are really trying to bait us into rushing into court," Janet Crepps, deputy director of the US legal program at the Center for Reproductive Rights told Mother Jones last year . "We'll go when we're ready. We're not going to go just because they want us to."

But has their patience reached an end? It would appear so, based on Rep. Trent Franks’ introduction of the “District of Columbia Pain-Capable Unborn Child Protection Act.” Franks, an Arizona Republican House member, has taken on the task of telling District of Columbia women that they should no longer have the right to access an abortion after 20 weeks, even in cases of rape or health issues, or if the fetus is found to have a deformity.

Both Franks and the National Right to Life Committee justify their overreach into local matters by calling it “ a matter of life and death .” But really, it’s a matter of legal positioning.

Because it is a district and not a state, Washington DC exists in a unique jurisdictional and constitutional space that makes its location especially juicy for those looking to press issues of constitutional law up through the federal courts. Like other federal jurisdictions, DC has a district court and an appellate court that can send a case involving a question of federal law before the Supreme Court for review. But on the “local” level, DC has only one court to hear appeals before a decision reaches the DC Circuit and then likely Supreme Court review. 

Put simply, DC can be a jurisdiction to fast-track constitutional challenges to existing law. With only one place for appeals, any challenge to a law is virtually guaranteed to go straight to the Supreme Court, which is exactly what the anti-abortion movement wants. If Franks and the National Right to Life Committee are able to get a relatively quick challenge to the constitutionality of the DC fetal pain bill then (like  Casey v. Planned Parenthood) the path to eroding Roe becomes much clearer.

The National Right to Life Committee, as well as its anti-choice supporters, believes that if the case is brought before the court, it will get a ruling that would set the idea of “fetal pain” as a new precedent for deciding when the security of the fetus outweighs the rights of a woman to control her own body. Once that has been established in the courts, the next move will be to bring in yet another set of “experts,” who will state that 20 weeks development is actually a conservative estimate, and that in actuality the ability to feel pain occurs much earlier than believed. So long as there’s not another court decision conflicting that ruling, they can move forward with these bills -- and arguably the Constitution -- on their side. Should they face a legal challenge that brings a conflicting ruling, the answer is easy: petition the Supreme Court to review the matter and settle it once and for all.