Reality check: States tough on abortion face legal costs
Bill Graber is not a fan of Roe v. Wade because the Ohio construction worker thinks the 1973 U.S. Supreme Court decision legalizing abortion went too far.
But Graber is not happy about Ohio lawmakers pushing a law that would ban abortions after a fetal heartbeat can be heard, because he worries the state will spend millions of dollars defending it.
“This is a gamble,” said Graber at Ohio state senate hearings last week on the “heartbeat” bill, which would ban abortion at as early as six weeks. “They are taking the state of Ohio’s credit card and they are going to the Supreme Court casino to throw the dice to see if they can go for the final death blow on Roe v. Wade. And they’re probably not going to do it.” The hearings continue Tuesday.
As Republican-majority legislatures this year have passed new limits on abortion, some states are now paying mounting cots for litigation as those laws are challenged on constitutional and other grounds. The American Civil Liberties Union has promised to sue if the heartbeat bill passes.
The potential for a tough court challenge has caused concerns about going too far, too soon - even among fierce abortion opponents.
“The makeup of the Supreme Court is a serious consideration,” said Utah State Rep. Carl Wimmer, a Republican. “Any time a state will do a full frontal challenge of Roe v. Wade, you need a reasonable belief you’ll meet that challenge.”
Wimmer said a fund has been set up for donations that would go toward defending any future Utah law challenging Roe v. Wade. He said a Supreme Court fight would require a minimum of $1 million.
Even without a direct assault on Roe through the Supreme Court, the cost to states to defend abortion restrictions can run high. Kansas, for example, has spent nearly $400,000 in legal bills in six months defending new laws to restrict abortion this year, according to the Kansas attorney general’s office. Of the total, $237,834 were spent on private lawyers defending efforts to strip Planned Parenthood of federal family planning funds.
Planned Parenthood was paid $623,000 in fees by South Dakota resulting from two challenges to abortion laws over a decade. This did not count the state’s own attorney hours and resources, according to Jennifer O. Aulwes, spokeswoman for Planned Parenthood, Minnesota, North Dakota, South Dakota.
The state’s Legislative Research Council estimated that the cost of defending a law passed in March requiring a three-day waiting period for an abortion could be between $1.7 and $4 million, according to executive director James Fry. South Dakota chose not to appeal a preliminary injunction.
Another South Dakota abortion law is before the 8th U.S. Circuit Court of Appeals. A donation-funded “life protection” subfund to defend abortion laws has a balance of $63,387, according to Sara Rabern, spokeswoman for the attorney general’s office.
Other states in court over abortion-related restrictions passed this year include Indiana, North Dakota, North Carolina, Oklahoma and Texas.
Jordan Goldberg, state advocacy counsel for the Center for Reproductive Rights, said the center’s docket this year is “one of the heaviest it’s ever been,” with about a dozen pending cases.
The cost of defending abortion laws is often discussed in state legislatures, but the argument “usually falls on deaf ears,” said Elizabeth Nash, state issues manager for the Guttmacher Institute, a reproductive rights research group. “It’s interesting because many of the people promoting abortion restrictions call themselves deficit hawks.”
Abortion opponents say the costs of litigation are worth it to save unborn babies’ lives.
“I think saving, in future years, millions of unborn babies from death is something you don’t put a dollar value on,” said Ohio Republican State Rep. Lynn Wachtmann, the Republican sponsor of the Ohio “heartbeat” bill.
Mary Kay Culp, state executive director at Kansans for Life, noted that no state money would have to be spent if groups like Planned Parenthood didn’t sue. She believes Kansas will prevail in its current pro-life litigation.
Ohio Right to Life has not backed the heartbeat bill because the makeup of the U.S. Supreme Court is not favorable to abortion opponents. This stand has caused divisions within the state’s anti-abortion community.
Stephanie Krider, legislative affairs director at Ohio Right to Life, told a state senate committee that the court could use the law to reaffirm Roe v. Wade and eliminate other restrictions on abortion.
“Let’s not let emotion blind us from reality and let’s make sure that we do not, unintentionally, do more harm than good,” Krider said.