The State Abortion Laws That Could Challenge Roe v. Wade
The retirement of Justice Anthony Kennedy increases the likelihood of extreme restrictions passing legal scrutiny.
It's been a good week for groups that oppose abortion rights.
The U.S. Supreme Court handed anti-abortion advocates a major win on Tuesday, striking down a California law that required crisis pregnancy centers -- which are usually run by anti-abortion groups -- to notify patients that the state offers options for abortion, contraception and prenatal services.
The next day, Justice Anthony Kennedy announced that he will retire at the end of July. President Donald Trump is expected to replace Kennedy, a swing vote on issues including abortion, with a solidly conservative justice who would tip the court's ideological balance in favor of conservatives.
In a rally in North Dakota on Wednesday, Trump said he was “very honored that [Kennedy] chose to [retire] during my term in office because he felt confident in me to make the right choice and carry on his great legacy.”
These developments offer hope to advocates for further restricting or even outlawing abortion.
“Now that Justice Anthony Kennedy -- a 25-year defender of abortion on the Supreme Court and the key vote to perpetuate Roe v. Wade -- is retiring, we urge President Trump to nominate a committed constitutionalist to the Supreme Court who will hew to the intended meaning of the nation’s charter and refrain from employing it as a means of social engineering,” said Catherine Glenn Foster, president and CEO of Americans United for Life, a group that advocates against abortion, in a statement.
Although Foster asserts that Kennedy is "a 25-year defender of abortion," he has in fact voted both ways on the issue. In the most recent case, he sided with anti-abortion groups. But in 2016, he sided with abortion rights groups, ruling that restrictions in Texas created an undue burden on patients seeking the procedure.
“Given the current hostility toward abortion rights at the federal level, Kennedy’s retirement is deeply troubling. Assuming a more conservative justice is appointed, the right to abortion would be under real threat as there are several cases challenging abortion restrictions that are winding through the legal system,” says Elizabeth Nash, state policy expert at Guttmacher Institute, which studies and advocates for abortion.
But the fate of abortion laws isn't just up to the Supreme Court. Reproductive rights experts say that, since Trump's election, conservative states have been pushing the line on abortion restrictions.
In the Trump era, “there’s been an emboldening across the board. Not just with judges, but with anti-abortion advocates. It’s not a coincidence,” says Heather Shumaker, senior counsel for reproductive rights and health at the National Women’s Law Center.
Last year, 19 states enacted 63 restrictions on abortion -- the highest number since 2013, according to the Guttmacher Institute. Reproductive rights experts say many of the recent state laws are so extreme that they could set up a showdown over Roe v. Wade, the 1973 ruling that legalized abortion.
“The anti-abortion movement has spent years purposefully pushing abortion restrictions, with hopes that they would be challenged and make it to the Supreme Court. Their strategies are intended to be a direct challenge to Roe v. Wade. As a result, the Supreme Court may have the opportunity to rule on reproductive rights as early as next term,” says Shumaker.
With the prospect of a soon-to-be solidly conservative Supreme Court bench, any outcome has a higher chance of being more favorable for abortion opponents.
Here are some of the laws that are currently tied up in lower courts but could eventually make their way to the Supreme Court:
- Iowa's "heartbeat bill," which passed in May. It would outlaw abortion when a fetal heartbeat is detected, which can be as early as six weeks -- before many women know they are pregnant.
- Louisiana and Mississippi's bans on abortion after 15 weeks of pregnancy -- the earliest in the nation.
- A bill in Ohio that would completely ban abortion; it was just assigned to a committee this month.
“Under the standards set in Roe v. Wade, these restrictions are unconstitutional, such as bans on abortion at a specific point in pregnancy and bans on abortion methods," says Nash. "A more conservative U.S. Supreme Court could use those pending cases to drastically reduce abortion rights and make abortion even harder to access."
Amid the news of Kennedy's retirement and the court's ruling on crisis pregnancy centers, advocates on both sides of the abortion issue are anxiously awaiting to see what happens on Monday in Arkansas.
Earlier this year, the Supreme Court declined to hear a case over a 2015 Arkansas law that would -- for the first time in U.S. history -- effectively cut off women's access to medication abortion. Days before it was set to take effect in June, a lower court judge blocked it for 14 days. Those 14 days are up Monday at 5 p.m., when another ruling is expected.
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