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Abortion in Nevada post-Dobbs: Moving beyond the political talking points of abortion advocates

 Jason Guinasso
 Jason Guinasso
Opinion
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In the wake of the U.S. Supreme Court’s decision in June finding that, “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” in Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. (2022), the focus of most of the campaign rhetoric this election cycle has been to manipulate fear and anger concerning this abortion decision.    

At IndyFest last weekend, the candidates for governor answered questions about abortion rights in Nevada. If you listen to the rhetoric of abortion advocates, you would think the candidates running for state constitutional offices could influence Nevada laws on abortion. They cannot.    

In Nevada, this issue is moot. Gov. Sisolak’s symbolic and self-serving Executive Order concedes this fact, proclaiming: 

Nevada Revised Statute Section 442.250 codified the right to abortion. This right was further protected in 1990 when Nevada voters affirmed this State’s dedication to protecting reproductive health care by passing Question 7, shielding NRS Section 442.250 from repeal without a direct vote by the people. In 2019, Nevada reaffirmed its commitment to reproductive freedom by passing Senate Bill 179, the Trust Nevada Women Act, which decriminalized medicated abortions and removed antiquated informed consent laws and other barriers to accessing reproductive health care across this State.” 

Based on his responses to Indy founder and CEO Jon Ralston during the debate, gubernatorial candidate Sheriff Joe Lombardo agrees: The law in Nevada regarding abortion rights is settled law.  

Strangely, based on the campaign rhetoric of the candidates and their surrogates, I am not sure they know what NRS 442.250 specifically provides? Many Nevadans certainly don’t. Therefore, as a public service, I quote it here for your review:

NRS 442.250  Conditions under which abortion permitted. [NRS 442.250 was submitted to and approved by referendum at the 1990 general election and therefore is not subject to legislative amendment or repeal.]

      1.  No abortion may be performed in this state unless the abortion is performed:

      (a) By a physician licensed to practice in this state or by a physician in the employ of the government of the United States who:

             (1) Exercises his or her best clinical judgment in the light of all attendant circumstances including the accepted professional standards of medical practice in determining whether to perform an abortion; and

             (2) Performs the abortion in a manner consistent with accepted medical practices and procedures in the community.

      (b) Within 24 weeks after the commencement of the pregnancy.

      (c) After the 24th week of pregnancy only if the physician has reasonable cause to believe that an abortion currently is necessary to preserve the life or health of the pregnant woman.

      2.  All abortions performed after the 24th week of pregnancy or performed when, in the judgment of the attending physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the womb by natural or artificial supportive systems must be performed in a hospital licensed under chapter 449 of NRS.

      3.  Before performing an abortion pursuant to subsection 2, the attending physician shall enter in the permanent records of the patient the facts on which the physician based his or her best clinical judgment that there is a substantial risk that continuance of the pregnancy would endanger the life of the patient or would gravely impair the physical or mental health of the patient.

Clearly, as noted in the title of the statute, the law can’t be changed absent a vote of the people of the State of Nevada. Further, women in Nevada have the right to choose an abortion through the 24th week of pregnancy. Thereafter, women in Nevada can have an abortion after the 24th week if there is a substantial risk that the pregnancy would endanger the life or physical or mental health of the mother.   

Nevertheless, on every media platform available, the vitriol of abortion advocates goes something like this:

“They are going to take away your right to abortion and put you in jail!”  

“Abortion is healthcare and they are going to take your health care away!”

“They are taking away your right to choose!”  

These narratives are false or misleading.  

First, the only people with the power to “take away your right to abortion” in Nevada is you – the voter – by initiative or referendum. As Gov. Sisolak pointed out during the IndyFest debate, voters codified the right to abortion into our laws in 1990. The Dobbs decision did nothing to change Nevada law regarding the right to have an abortion. In fact, the Dobbs decision expressly delegates the questions regarding whether and to what extent a person has a right to an abortion to the states. This question is not on the ballot this election cycle; and, there are no elected officials who can change the Nevada law on abortion, except perhaps those running for U.S. Senate or House seats who might advocate for a national ban on abortion. However, each and every Nevada candidate for a congressional seat has said they would not support a national ban because it is a decision for the states to make — and the people of the State of Nevada have made their choice.  

Second, based on their well-document advocacy record across the country, advocates for abortion rights do not really believe that “abortion is health care.” If they did believe abortion was health care, they would support laws that actually treat abortion as health care and make the abortion procedure safe. But, unfortunately, abortion advocates oppose laws that regulate health care providers to ensure safe and sanitary care, cynically labeling them “TRAP” laws (Targeted Regulation of Abortion Provider)

TRAP laws include those requiring facilities where abortions are performed to be licensed and undergo regular inspections, those implementing minimal staffing requirements for abortion facilities, those establishing licensing requirements for physicians who perform abortions and requiring them to have admitting privileges at a local hospital, those requiring policies for preoperative testing and examinations, surgical procedures, postanesthesia care, discharge planning and emergency services, and those regulating informed consent of the woman undergoing an abortion procedure. The utter hypocrisy of those advocating for “abortion as healthcare” while at the same time opposing basic minimal standards for ensuring that the “healthcare” is safely provided is breathtaking.  This hypocrisy also ignores the question concerning the healthcare needs of the unborn child at different stages of gestation, which in Nevada is relevant because after 24 weeks of pregnancy a doctor must take into consideration the needs and risks of pregnancy to the “patient,” which includes the unborn child.  

Third, advocates for abortion like to say they are advocates for “choice,” but they rarely if ever actually support providing individuals with all the information they need to make an informed choice. Indeed, advocates for abortion ruthlessly slander and attack entities that provide information concerning alternatives to abortion.  For the abortion advocate, “choice” is only “choice” if the “choice” is abortion. As evidence for this fact, how many abortion advocates have you heard advocate for adoption as a choice? How many celebrate and support women who make the choice to carry a pregnancy to term?  

Abortion advocates will raise money so women can fly across the country to get an abortion or, as in Nevada, work to expand capacity to provide access to abortion, but will not apply that same zeal to raising money to support a woman who chooses to keep her child or who chooses to give her child to an adoptive family.  

Given the state of abortion law in Nevada, why are advocates for abortion and their political supporters going to such great lengths to make abortion an issue where it really isn’t an issue?

Post-Dobbs, the conventional political wisdom is that abortion rights is a winning issue for Democratic candidates in an election cycle many pundits believe favor Republican candidates because of electoral concerns about the economy. Making abortion an issue appears to be an attempt to mitigate the impact of the so-called “red-wave.”  

In addition to this political calculous, just follow the money to understand the current focus on abortion rights this campaign cycle. Why? A major motivator for abortion advocates is money. According to Forbes, Planned Parenthood Federation of America’s (PPFA) total assets are valued at more than $2 billion dollars with annual revenue of more than $1.6 billion. In its annual report released just last week, Planned Parenthood acknowledged it provided 383,460 abortions in 2021—an all-time high, up from 354,871 the previous year. Hence, any reduction in the number of abortions provided is not a depravation of a fundamental right for Planned Parenthood, but a direct threat to the organization’s bottom line.  

Under the guise of defending constitutional rights, millions of dollars are spent by abortion advocates on elections to protect that bottom line of abortion providers.  

Clearly, the perpetual conflict over abortion is more valuable to abortion advocates and their preferred candidates than finding common ground that could make abortion legal, safe, and rare as President Bill Clinton once advocated. Embracing worn out talking points concerning abortion in an effort to win an election demonstrates a cynical disregard for where a majority of Nevadans and most Americans are at on this issue. 

Although there will never be agreement in my lifetime about whether abortion should remain legal or whether Roe v. Wade was correctly decided, most people generally support a woman’s autonomy in her health care choices. Most people also believe that abortion, if and when provided, should be safe. Moreover, both parties agree that women should receive accurate information about the options they have when pregnant, and there is even consensus on whether parents should be notified when their minor children become pregnant.  According to the Guttmacher Institute, the majority of states require parental involvement in a minor’s decision to have an abortion. Most of these states require the consent or notification of only one parent, usually 24 or 48 hours before the procedure, but a handful of states require the involvement of both parents.

Now that the Supreme Court has squarely returned decisions about abortion law and policy to the states, the political and policy debate in Nevada should not be over the “right to abortion,” but about the needs of individuals who are considering an abortion.  

For example, Dobbs has created uncertainty regarding whether a Nevada law enjoined under Roe and giving parents the right to receive notice that their minor child is considering undergoing an abortion is now valid. In 1985, there was a bipartisan consensus in Nevada that parents should be notified when their children are considering whether to have an abortion. This consensus led to the Legislature enacting Nevada Revised Statute (“NRS”) 442.255. This statute prohibits a physician, with certain exceptions, from knowingly performing an abortion upon a pregnant minor unless: (1) a custodial parent or guardian of the minor is notified in the statutorily-prescribed manner before the abortion; or (2) upon the request of the minor, the district court authorizes the abortion without parental notification when the minor meets certain criteria. 

However, before the requirements became effective in 1985, Nevada’s federal district court enjoined their implementation on grounds that they unconstitutionally burden a woman’s fundamental right to make the highly personal choice of whether to have an abortion, thereby violating the woman’s interests in personal liberty protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (See Glick v. McKay, 616 F. Supp. 322, 323-28 (D. Nev. 1985)). In 1991, the U.S. Court of Appeals for the Ninth Circuit affirmed the federal district court’s decision in Glick v. McKay, 937 F.2d 434, 437-42 (9th Cir. 37 1991). 

The Ninth Circuit relied upon two reasons for invalidating Nevada’s parental notification requirements: (1) the requirements impermissibly narrowed the criteria under which the court could give judicial authorization for an abortion without parental notification when the abortion would be in the minor’s best interests; and (2) the requirements did not place any time limit on the period within which the district court must rule upon a request for judicial authorization — and therefore they did not facially ensure that the minor’s interests would be protected by expedited judicial review. However, in 1997, when the U.S. Supreme Court reversed a different Ninth Circuit decision that struck down Montana’s parental notification requirements, the U.S. Supreme Court disapproved the first reason relied upon by the Ninth Circuit in the Glick decision to strike down Nevada’s parental notification requirements. (Lambert v. Wicklund, 520 U.S. 292, 294-99 (1997)). But, the Supreme Court did not address the second reason relied upon by the Ninth Circuit in the Glick decision.

As a result, the Ninth Circuit’s Glick decision prior to Dobbs was considered to be still in effect in Nevada. Post Dobbs, however, because Glick relied on the Roe line of cases as precedent, Nevada’s existing parental notification requirements may now be constitutional. This would be consistent with current public opinion on parental rights and the needs of their minor daughters who become pregnant.   

Most U.S. adults think parents should not just be notified, but should have to give their permission, before a minor daughter has an abortion. For more than a decade, Gallup and other polling firms have found roughly 7 in 10 Americans favor laws that require women under the age of 18 to receive parental consent for any abortion. 

Politicians running for office this cycle should pay attention to the broad consensus on this issue because most people believe that parents are in the best position to serve their daughter's interests and health care needs. Because abortion is a surgical procedure, most reasonable people agree that a parent should have some involvement in the decision of their daughter to have an abortion. Indeed, no other surgical procedure grants children the ability to consent without involving the parent. A child under 18 cannot get a tattoo, a band-aid, an aspirin or use a tanning bed in Nevada without parental consent, let alone simple notification. A child under the age of 18 cannot miss a day of school without parental involvement — yet she can get a surgical abortion. Additionally, parental notification is a means to protect girls from predatory sex abusers and human traffickers.  

Any honest legal scholar, conservative or liberal, would have told you that Roe would eventually be overturned. Now that it has been, it is time to move past the talking points of the past and have a real conversation on the value of life and how we will be supporting women and their children. Sadly, solving problems related to the health and safety of women, informed consent and protecting children who become pregnant are not as valuable in an election year as exploiting fear and anger over the Dobbs decision for political gain. Having a reasonable dialogue on abortion in Nevada will be impossible until the political brokers of conflict stop focusing on energizing their “base,” and start focusing on the health and welfare of woman navigating their way through the abortion decision in our state.    

Jason D. Guinasso is the managing partner of law firm Hutchison & Steffen’s office in Reno. He is a litigator and trial attorney who also maintains an appellate practice, which includes petitions for judicial review of administrative decisions, extraordinary writs, and appeals to the Nevada Supreme Court. He also is legal counsel for the Reno/Fernley Crisis Pregnancy Center and an associate pastor at Ministerio Palabra de Vida where he serves a diverse multicultural church.

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