The fight over abortion rights may be on the road to the Supreme Court.
That’s the intent, anyway, of abortion opponents eager to get the issue in front of the court’s conservative-leaning justices. Alabama has passed a bill that bans abortion outright, in violation of Roe v. Wade, the 1973 Supreme Court decision that gave women the right to an abortion before the fetus is viable.
Meanwhile, other states have been passing what are known as “heartbeat” bans that would prohibit abortions when a fetal heartbeat can be detected.
These state laws are already being challenged by abortion rights groups. That’s the main objective for many abortion opponents, who are trying to get their cases to the Supreme Court, which now has what is considered to be a conservative majority with the addition of Justice Brett Kavanaugh in October.
Which states have passed fetal heartbeat bills and why does it matter to Roe v. Wade?
Seven states have passed bills to severely restrict abortion access: Arkansas, Alabama, Georgia, Kentucky, Mississippi, Ohio and Utah. The one in Alabama, victims of rape or incest., is the most restrictive, as it bans all abortions in the state unless the pregnancy poses a significant risk to the woman’s health. It criminalizes the procedure, making it punishable by up to 99 years in prison for doctors. Controversially, the legislation also makes no exceptions for
Roe v. Wade legalized abortion nationwide in 1973. The decision found that states could not regulate any abortion services provided during the first trimester, and that no state can ban abortions that help preserve the life or health of the mother.
A subsequent 1992 decision in Planned Parenthood v. Casey upheld that ruling, affirming that states can regulate abortion only after fetal viability — that is, when a fetus is able to survive outside the womb — which typically is at 24 weeks. However, Casey also broadened states’ power in regulating abortion, as the ruling found that states can also regulate abortions before 24 weeks, as long as it doesn’t place an “undue burden” on the woman.
Justices Sandra Day O’Connor, Anthony Kennedy and David Souter wrote an opinion for Casey saying that states had the power to regulate abortion because of their “important and legitimate interest in potential life.” Prior to fetal viability, the opinion said, a state may only regulate abortion out of concern for the woman’s health. Once fetal viability is reached, the state’s “legitimate interest” gives them the constitutional latitude to prohibit abortion, the justices ruled.
What’s so special about Kavanaugh?
There are a few reasons why state legislatures are pushing to pass these heartbeat bills and other restrictive measures, the main one likely being Kavanaugh’s confirmation. Kavanaugh replaced Kennedy, who had reaffirmed Roe in the Casey decision.
Unlike his predecessor, Kavanaugh is seen as less likely to be a centrist swing vote on the court. And now that conservatives have an edge on the high court, some states are more likely to test their luck on implementing restrictive abortion laws.
All of the seven states that passed restrictive abortion bills have a “trifecta,” meaning that the Republican Party controls the governorship and both houses of a state legislature. Missouri, which will, also has a Republican trifecta. One-party control of these states, which was solidified in the 2018 elections, has allowed Republican legislators and governors to pursue this controversial legislation.
A total abortion ban is also under consideration in Texas and Oklahoma, and fetal heartbeat bills are currently pending in Texas, Louisiana, Minnesota, and New York. The bill in New York — which has a Democratic trifecta — is essentially dead on arrival.
What happens when these bills pass and are signed into law?
Organizations that support reproductive rights, such as the American Civil Liberties Union and Planned Parenthood, are sure to challenge them in federal court.
More incremental anti-abortion laws have been thrown out in federal courts due to the “undue burden” standards. In 2016, the Supreme Court blocked a Texas law which severely restricted delivery of abortion services, ruling in Whole Woman’s Health v. Hellerstedt that it placed an undue burden on women by making abortions harder to acquire. This year, the Supreme Court issued a stay on a similar law in Louisiana, which a federal district court judge had ruled failed the “undue burden” test.
The heartbeat bills openly flout the rulings in Roe and Casey. Because lower courts cannot overrule Supreme Court decisions, the laws are likely to be blocked in federal district and appeals courts. The supporters of these laws can then petition the Supreme Court to review the cases, setting up a possible scenario in which the court reverses itself on abortion.
Which states are having these laws challenged?
The ACLU and the Ohio chapter of Planned Parenthood filed a lawsuit this week challenging the state’s heartbeat bill in court. A federal judge blocked Kentucky’s law in March, and a challenge to Mississippi’s law is pending.
Kentucky Gov. Matt Bevin will appeal the decision by District Judge Joseph H. McKinley Jr. to the 6th Court of Appeals. The Center for Reproductive Rights has also challenged the Kentucky and Mississippi laws.
Could one of these laws make it to the Supreme Court?
It’s far from certain whether the Supreme Court, which chooses its own docket, would decide to review one of these state laws. If that were to happen, lower courts would invalidate the laws while the Supreme Court stays on the sidelines.
“There’s a strong chance they might not even decide it, because it’s so blatantly unconstitutional, that they say ‘there’s no decision for us to make here,'” attorney Jesse Weber told “CBS This Morning Saturday.” Weber said that the Supreme Court may choose to look at less sweeping laws, like the Louisiana law restricting access to abortion, before they pick up the broader state bans.
Four justices must vote to take up a case in order for the Supreme Court to consider it, said Melissa Murray, a professor at New York University Law School. And some anti-abortion rights activists are particularly concerned because Chief Justice John Roberts seems unwilling to tip the status quo. Murray said that Roberts may peel off to side with the four liberals on the court on whether to hear one of these cases, and may also convince another conservative justice not to vote to hear the case.
Roberts joined the four liberal justices in blocking the Louisiana law in February, just three years after he was in the minority in Hellerstedt, ruling that the Texas law should have been allowed to be enacted. Roberts has spoken publicly about his conviction that the court should be an apolitical body, and could choose to simply follow the court’s precedent on abortion instead of wading in to such a politically contentious issue.
“He is all about timing, and if he can play a long game with fewer public consequences for the court, he would rather do that,” Murray said about Roberts. “I think he would worry that a decision where the conservatives line up against abortion and the liberals all line up to uphold Roe v. Wade would be a disaster for the court’s reputation and for the court’s legitimacy.”
Murray said it would be more likely that the court would rule in favor of laws which slowly chip away at abortion rights without overturning Roe as a whole.
“It may exist as a right, but it’s basically meaningless for most women — completely inaccessible, or just not something that women given their circumstances can actually exercise,” Murray said. “I think that’s probably the more attractive option, because it doesn’t mire the court in a lot of partisan politics.”
Regardless of whether one or more of these state laws is considered in the Supreme Court, Republican-controlled states are likely to keep implementing these restrictive measures. Roe wasn’t overturned in 1992, but with the right conditions and the right court, conservatives are hoping that the 45-year-old ruling might finally be tossed out.