If the Supreme Court wants to start dismantling Roe v. Wade, it can begin almost immediately after Justice Anthony Kennedy’s successor is confirmed, which means abortion rights groups are girding for political and legal battle across dozens of states unlike anything seen in the last 45 years.
The retirement of Kennedy this month is the biggest threat in decades to the Supreme Court’s 1973 Roe decision, which legalized abortion nationwide. As President Trump himself promised during the campaign, the “pro-life” justices he would choose could lead to a Roe reversal “automatically.” There are indications that appeals court Judge Brett Kavanaugh, Trump’s choice for Kennedy’s seat, fits this mold.
If the Supreme Court was feeling bold, it could use any abortion case to overturn Roe and say that abortion is not a right enshrined into the Constitution. A number of states have so-called “trigger laws” that would ban or severely curtail abortion immediately if Roe was reversed.
Or the Supreme Court could take a more incremental approach, not reversing Roe outright, but giving states wider and wider latitude to impose restrictions on the procedure, until it is simply inaccessible for millions of women in red states, and particularly those of lower income status.
Regardless, what had been a deliberate and strategic battle by abortion opponents aiming narrowly at Kennedy’s vote is about to expand to an all-out war, and they are already well poised to take it to the Supreme Court’s doorstep.
Abortion law experts estimate that there are some four dozen abortion cases already in the legal pipeline, and more than a dozen of them at the appeals court stage.
“Anyone who cares about abortion rights should be watching every single case that’s in the federal courts right now,” David Cohen, a law professor at Drexel University, told TPM.
If the Supreme Court wants to take on Roe in the starkest of terms, there are plenty of states willing to send up bans on abortion very early in the pregnancy that would allow the court to do so.
Case Western University Law Professor Jessie Hill, who’s litigated cases in favor of abortion rights, pointed to fetal heartbeat abortion bans, which she said are “meant to be direct challenges to Roe v. Wade.”
Such prohibitions on abortions after a fetal heartbeat is detected typically fall around six weeks in the pregnancy, which for many women is before they know they’re even pregnant.
A judge just last month temporarily blocked Iowa’s fetal heartbeat six-week abortion ban that was passed by the state in early May. Previously, North Dakota in 2013 passed a six-week ban that was struck down by courts.
Other states have sought to ban abortions at 12 weeks in laws that were later rejected by courts, while many states have passed 20-week abortion bans — meant to bait Kennedy into an anti-abortion ruling — though abortion rights proponents have been less inclined to bring lawsuits challenging those.
A similarly bold approach would be to send up to the Supreme Court so-called “personhood” laws, which seek to give fetuses from the moment of conception the same legal rights as persons.
Such a bill was introduced just this year in Ohio, where the legislation would have banned abortion with no exceptions for rape or incest. Other states have tried and failed to get personhood measures on the books, or have seen their personhood measures struck down by courts.
States have shown a willingness to ban abortions based on the method being used, rather than by the gestational point of pregnancy. Such an approach, depending on the law, would have the effect of banning abortion in a large number of cases.
A dilation and evacuation ban — commonly referred to as a “D and E” ban — is one such example. The method is extremely common after 12 weeks of pregnancy, and for a large part of the second trimester there would “no other method available,” according to Elizabeth Nash, an expert on state policy for the Guttmacher Institute.
“That’s a really big conflict with Roe,” she said.
Alabama’s D and E ban was ruled unconstitutional last year by a federal judge, as was Texas‘.
“That is the only way you can get an abortion in Alabama,” Jennifer Dalven, director of ACLU’s Reproductive Freedom Project, told TPM. “You can call it a method ban, but in essence its the same as a 15-week-ban.”
Alabama’s case is a little farther along procedurally — an appeals court heard arguments on the law earlier this year, while Texas’ appeals court arguments aren’t yet scheduled — but both are not far off from Supreme Court’s potential consideration. Mississippi’s version of the law was temporarily blocked by a judge this year, and other states have sought to outlaw the procedure.
Bans targeting certain reasons that women seek an abortion may not ban the procedure outright, but if sanctioned by the Supreme Court could open the floodgates for politicians to determine why a woman can or cannot end her pregnancy.
“It’s no longer the woman’s decision based on her reasons,” Dalven said. “It would give the politicians the ability to say, ‘These reasons I approve of and you can have abortion, but other reasons are not acceptable.’”
An Indiana law signed by then-Gov. Mike Pence in 2016 that prohibits abortions sought due to a potential disability detected in the fetus was ruled unconstitutional by an appeals court in April. The deadline for that decision to be appealed to the Supreme Court is in September.
Ohio has a similar case, stemming from a 2017 law banning abortions after prenatal test indicating a likelihood of Down syndrome, that it is appealing to the 6th U.S. Circuit Court of Appeals, after a district court temporarily blocked it this spring.
Justice Kennedy gave liberals a key fifth vote in striking down overly cumbersome clinic regulations in the 2016 case Whole Woman’s Health v. Hellerstedt, which established that a “a substantial obstacle in the path of women seeking a previability abortion” was an undue burden on abortion.
The decision was key in instructing courts to weigh evidence that the clinic restrictions — often called “targeted regulation of abortion providers” or TRAP laws — would actually further women’s health against evidence that the restrictions sought to impede access to the procedure.
There are multiple cases percolating, including in Indiana, Texas and Virginia, that would allow the Supreme Court to revisit that standard, now that the liberal block has lost Kennedy’s vote.
“Because there is so much room for interpretation about what Whole Woman’s Heath does and doesn’t require, that’s a whole area that the court could just easily change direction on without overruling Roe and without looking like it’s doing anything too radical,” Hill said.
While the strategy might look like a more moderated approach, it could still have devastating affects on women’s access to the procedure, particularly among lower income women.
An appeals court last year sided with Arkansas in one such case, where the state is defending its requirement that medication abortion providers have admitting privileges with hospitals. (Admitting privileges were among the Texas regulations struck down in Whole Woman’s Health). The Supreme Court in May declined an opportunity to take up the case — where the law stands to close two of the Alabama’s three clinics — while the lawsuit continues at the lower court level.
In other cases, according to Nash, states are seeking to get around Whole Woman’s Health by arguing that the issue is fetal health, rather than the woman’s health, which was the focus of the 2016 case.
Another subset of TRAP laws gaining momentum are fetal tissue disposal regulations requiring burials or cremations of the tissue. Such a requirement is currently being litigated in Texas — where a trial is underway — and was also among the provisions in the Indiana law struck down earlier this year.
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