Anti-abortion activists nationwide are spearheading the legal equivalent of throwing an Olympic-size swimming pool of spaghetti at the wall to see what sticks.
There are five active laws — e.g. that have not been struck down by a judge — passed recently in an attempt to make a run at Roe. But before they can, they have to wend their way through a tangle of District and possibly Appellate courts.
If the judiciary consisted solely of justices who respected precedent over their personal ideologies, Roe would be legally unassailable — its findings were upheld in Casey v. Planned Parenthood in 1992. But that is not a guarantee, especially following the influx of right-wing judges being pumped into the system by President Donald Trump and Sen. Majority Leader Mitch McConnell (R-KY).
Here’s the reality on the ground.
Mississippi
What Do We Know About The District Court?
A ban on abortions after six weeks was signed into law on March 22, 2019 and was set to be enacted on July 1, 2019. The Center for Reproductive Rights spearheaded the legal effort against it, asking for an injunction to block its enforcement.
The request for an injunction is currently sitting in the District Court for the Southern District of Mississippi, northern division. The judge on the case is Carlton Wayne Reeves, an Obama appointee from 2010.
Insight into Reeves’ thinking on the issue is fairly easy to come by, as he wrote a heated opinion when he struck down a 15-week ban Mississippi attempted last year.
“The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote in his ruling. “With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell.”
He added that there is “no legitimate state interest strong enough, before viability, to justify a ban on abortions.”
“The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court,” he concluded.
Given this, legal observers think Reeves will strike down the law. When he does, the plaintiff (in this case, Thomas Dobbs, the State Health Officer of the Mississippi Department of Health) can appeal the decision to the Fifth Circuit Court of Appeals.
What Do We Know About The Appellate Court?
The Fifth Circuit is extremely conservative and loaded with Trump appointees. It upheld an abortion-related case last month out of Louisiana that is remarkably similar to a case out of Texas that the Supreme Court had already struck down, regarding admittance requirements for doctors who provide abortions. That the Fifth Circuit upheld a ruling almost identical to one declared unconstitutional by the Supreme Court was itself a startling disregard of precedent. Chief Justice John Roberts joined with the liberal justices to freeze the Louisiana case to give the abortion providers time to file an appeal.
So, the Mississippi law’s fate is not clear-cut. On the one hand, the Supreme Court smacked down the Fifth Circuit in that Texas case, issuing a reprimand. But the Texas ruling was decided by a Supreme Court with a different makeup. In that case, former Justice Anthony Kennedy sided with the liberal justices in a 5-3 opinion (Roberts joined Justice Clarence Thomas and Justice Samuel Alito). Now, Kavanaugh and Gorsuch are on the bench.
Ohio
What Do We Know About The District Court?
Gov. Mike DeWine (R) signed a six-week abortion ban in early April. The ACLU and Planned Parenthood filed lawsuits on Wednesday, asking for an immediate challenge to the law slated to go into effect on July 1.
Now it’s tossed to the District Court for the Southern District of Ohio. The judge handling the case is Michael Barrett, a Bush appointee from 2006.
Barrett has been less outspoken on this issue than Reeves. Most recently, he blocked a part of an Ohio ban of a second trimester abortion procedure, ruling that doctors cannot be criminally charged for carrying it out. He also agreed with Planned Parenthood, which filed the lawsuit, that the law was likely to be found unconstitutional. In a nod to the anti-abortion contingent though, he did write: “[T]he Court finds it unlikely that pre-viability fetuses feel pain. The Court recognizes, however, the State’s interest in this area to prevent even the possibility.”
He also found a 2016 law unconstitutional that would ban state money from going towards non-abortion procedures (like sexually transmitted disease testing) if they are housed with or affiliated with entities that provide abortions. The Sixth Circuit Court of Appeals reversed that decision.
What Do We Know About The Appellate Court?
The Sixth Circuit Court of Appeals is also replete with Trump appointees. Along with reversing Barrett’s ruling on the abortion providers, it upheld a law out of Kentucky in April requiring doctors performing abortions to do an ultrasound that includes audio of the fetus’ heartbeat.
For broader context, since 2007, the Supreme Court has overturned Sixth Circuit decisions 88.1 percent of the time when it decided to hear cases from the lower court. That gives the Sixth Circuit the dubious honor of being the most reversed appellate court. Though, as is the theme here, new Supreme Court, new day.
Kentucky
What Do We Know About The District Court?
A six-week abortion ban in Kentucky was signed March 15 and slated to go into effect immediately. The ACLU mounted an instantaneous challenge, landing the law in the District Court of the Western District of Ohio under judge David Hale, an Obama appointee from 2014.
Hale made his adherence to the precedent set by Roe fairly clear when he first froze the six-week ban from taking immediate effect.
“The Supreme Court has stated in no uncertain terms that regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” he wrote.
He has since put an indefinite suspension on the six-week ban, along with a law banning abortions based on gender, disability or race of the fetus, until the court determines their constitutionality. He had said previously that in regards to the six-week ban, the ACLU’s argument that the law is unconstitutional had a “strong likelihood of success.”
What Do We Know About The Appellate Court?
Kentucky also falls under the jurisdiction of the Sixth Circuit. The Sixth Circuit specifically overturned a Hale ruling in April, as he was the judge that struck down the Kentucky ultrasound/fetal heartbeat law.
Georgia and Alabama
Though various groups have vowed to challenge both the six-week ban out of Georgia and the comprehensive ban from the moment of pregnancy in Alabama, none have filed lawsuits yet.
Georgia Gov. Brian Kemp (R) signed the ban into law last week. The ACLU and Center for Reproductive Rights have vowed to challenge it in court. It’s slated to go into effect in January 2020.
Alabama Gov. Kay Ivey (R) signed the restrictive bill into law on Wednesday. The ACLU and Planned Parenthood have vowed to challenge it. It’s supposed to take effect in November 2019.
Both Georgia and Alabama fall into the 11th Circuit Court of Appeals’ jurisdiction.
If last year provides any guidance, anti-abortion activists should probably not expect a win for Alabama and Georgia’s laws at the appellate level, should the laws make it to that body.
A three-judge panel at the 11th Circuit Court — considered one of the most conservative appellate courts — shot down a law from Alabama that would have allowed prosecutions of doctors who performed a common second trimester abortion procedure.
One of the judges who ruled against the law added in an opinion that he personally finds Roe v. Wade unconstitutional but that he is “bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”
Of course, even if the 11th Circuit Court stayed consistent with that decision, the plaintiff could always appeal that decision to the Supreme Court which could decide whether or not to take the case.
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