Alabama’s virtual ban on abortion is the latest and most far-reaching state law seemingly designed to prod the Supreme Court to reconsider a constitutional right it announced 46 years ago in the landmark Roe v. Wade decision.
But Chief Justice John Roberts may prefer a more incremental approach to reining in abortion rights than the frontal attack Alabama’s new law or the “fetal heartbeat” measures enacted by other states present.
The passage of abortion restrictions in Republican-led states and a corresponding push to buttress abortion rights where Democrats are in power stem from the same place: Changes in the composition of the high court. The retirement of abortion-rights supporter Justice Anthony Kennedy and the addition of President Donald Trump’s appointees, Brett Kavanaugh and Neil Gorsuch, may make the court more willing to cut back on the right to abortion, if not take it away altogether.
Several state restrictions already are pending before the justices, and it seems likely that at least one abortion case will be on the court’s calendar next term, with a decision likely in the midst of the 2020 presidential campaign.
Some questions and answers on the legal fight over abortion rights and how the Supreme Court could respond:
HOW QUICKLY COULD THE ALABAMA LAW GET TO THE SUPREME COURT?
Not that quickly. The law is certain to be challenged in federal court in Alabama and almost surely will be blocked because it plainly conflicts with Supreme Court precedent. Review by the federal appeals court in Atlanta would come next, and only then would the Supreme Court be asked to weigh in. Emergency appeals by either side could put the issue before the justices sooner, but that would not be a full-blown review of the law.
WHAT ABORTION CASES MIGHT REACH THE HIGH COURT SOONER?
Indiana has appealed lower court rulings blocking provisions prohibiting abortions over race, sex or disability, regulating the burial of fetal remains and requiring a pregnant woman to undergo an ultrasound at least 18 hours before an abortion. The first two of those issues have been pending at the Supreme Court for months with no explanation.
Separately, Roberts and the liberal justices blocked a Louisiana law regulating abortion clinics from taking effect in February, making the chances good that the court will review the law next term and issue a decision by June 2020.
Alabama has appealed a ruling invalidating a law prohibiting the most common method of abortion in the second trimester.
Four other states — Mississippi, Kentucky Ohio and Georgia — enacted laws this year banning abortion once a fetal heartbeat is detected, which can occur as early as the sixth week of pregnancy. None of those laws has yet taken effect, and lawsuits have been filed or are planned to block all of them.
ISN’T IT RISKY FOR ABORTION-RIGHTS ADVOCATES TO CHALLENGE THESE LAWS IN COURT?
Abortion-rights activists say they have no alternative but to file lawsuits challenging every tough abortion ban passed.
“Were we not to challenge them, they would go into effect,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “There’s no strategy of ‘Maybe we leave this one and challenge that one.'”
The ACLU and its allies expect lower-level federal courts to honor Roe by blocking the abortion bans. The ultimate question, Dalven said, is whether the Supreme Court will decide to revisit Roe by agreeing to hear an appeal from one or more of the states whose ban was blocked.
“It would be an extraordinary thing for the Supreme Court to take away an individual constitutional right,” she said.
Anti-abortion activists hope the high court will be willing to reconsider Roe.
“It is clearer than ever that Roe is far from being settled law in the eyes and hearts of the American people, and this is increasingly reflected in state legislatures,” said Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List. “The American people want a fresh debate and a new direction.”
HOW MIGHT CHANGES ON THE COURT AFFECT RULINGS ON ABORTION?
Kennedy’s retirement and Kavanaugh’s confirmation in October leave the four liberal justices playing defense, or trying to prevent the court from undoing earlier decisions. Kennedy was a key part of the court majority that reaffirmed abortion rights in 1992 in a decision that measures restrictions on abortion by whether they place an “undue burden” on a woman’s right to have one.
The justices don’t overturn precedent often, even when it’s a decision they disagree with. And when they do, it’s usually because an earlier decision is “egregiously wrong,” as Kavanaugh put it earlier this term.
Justice Stephen Breyer offered the latest recognition of the difficulty his liberal side of the court faces in a dissent in a case unrelated to abortion that the court decided Monday, one in which the five conservatives voted to overturn a 1979 decision.
Breyer, joined by liberal colleagues Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, cited the 1992 abortion decision in Planned Parenthood of Southeastern Pennsylvania v. Casey in a dissent that concluded: “Today’s decision can only cause one to wonder which cases the court will overrule next.”
Justice Clarence Thomas is the only member on record as supporting overruling the court’s abortion precedents. In his most recent comments on the topic in February, also in a case unrelated to abortion, Thomas likened Roe to the court’s 1857 Dred Scott decision, which said African Americans weren’t citizens. Both, he wrote, were “notoriously incorrect.”
WHY MIGHT ROBERTS HOLD THE KEY?
With Kennedy gone, Roberts is now the justice closest to the court’s center. The chief justice also has a track record of preferring smaller bites before making significant changes in constitutional law.
“You do see consistently in the chief justice’s career a willingness to go incrementally and only decide what the court needs to resolve in the case before it,” said Michael Moreland, a Villanova University law professor.
Roberts also is aware of the questions the court would face if a conservative majority of justices, all appointed by Republican presidents, were to reverse the abortion decisions, Moreland said.
Still, Roberts has, with one exception, favored abortion restrictions. His provisional vote to block the Louisiana clinic law was the only time he voted in support of abortions rights in more than 13 years on the court.