Roe ruling sets off new court fights
NEW ORLEANS » The fall of Roe v. Wade shifted the battleground over abortion to courthouses around the country Monday, as one side sought quickly to enact statewide bans and the other tried to block or at least delay such measures.
The U.S. Supreme Court’s decision Friday to end constitutional protection for abortion opened the gates for a wave of litigation from all sides.
Many of the court cases will focus on “trigger laws,” adopted in 13 states in anticipation of the ruling and designed to take effect swiftly. Lawsuits could also target old laws targeting abortion that were left on the book and went unenforced under Roe.
Newer abortion restrictions that were put on hold pending the Supreme Court ruling have also started to come back into play.
“We’ll be back in court tomorrow and the next day and the next day,” Nancy Northup, president and CEO of the Center for Reproductive Rights, which argued the case that resulted in the highcourt ruling, said Friday. Some early actions:
• The American Civil Liberties Union of Arizona and an abortion-rights group filed an emergency motion Saturday seeking to block a 2021 law they worry can be used to halt all abortions.
• Planned Parenthood in Utah has challenged a trigger law with narrow exceptions.
•On Monday, abortionrights advocates asked a Florida judge to block a new state law that bans abortions after 15 weeks with
some exceptions and is set to take effect this week.
• Attorneys hoping to stave off a prohibition on abortion in Louisiana filed a lawsuit arguing state laws are unclear on when a ban can take effect and what constitutes an exception.
Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, said the organization is looking at “all options” to protect access to abortion.
As of Saturday, abortion services had stopped in at least 11 states, either because of state laws or confusion over them.
In some cases, the lawsuits may only buy time. Even if courts block some bans or restrictions from taking hold, lawmakers in many conservative states could move quickly to address
any flaws cited.
That is likely to be the case in Louisiana. The state’s Republican attorney general took to Twitter on Friday to say bans with “trigger” provisions passed in anticipation of the ruling were immediately in effect. The only three clinics providing abortions in the state closed that day.
The plaintiffs in the lawsuit filed in state court in New Orleans, including one of those clinics, don’t deny that Louisiana can now ban abortion. Instead, they contend Louisiana now has multiple, conflicting trigger mechanisms in the law.
They also argue that state law is unclear on whether it bans an abortion prior to a fertilized egg implanting in the uterus. And while the law provides an exception for “medically futile” pregnancies, in cases
of fetuses with lethal abnormalities, the plaintiffs noted the law gives no definition of the term.
Around the country, challenges to other trigger laws could be made on the grounds that the conditions to impose the bans have not been met, or that it was improper for a past legislature to bind the current one.
Laura Herner, a professor at Mitchell Hamline School of Law in St. Paul, Minn., said other challenges might call into question whether state laws sufficiently and clearly allow for exceptions to protect the life or health of a pregnant woman.
Now that the high court has ruled that the U.S. Constitution does not guarantee the right to an abortion, abortion-rights supporters will make the case that state constitutions protect
such a right.
A judge heard arguments on that issue Monday in Florida, where attorneys sought an emergency injunction to stop a new law from going into effect Friday. The ban beyond 15 weeks has exceptions to save the pregnant woman’s life, prevent physical harm or in cases where the fetus has a fatal abnormality. The ACLU of Florida has argued it violates the Florida Constitution.
In a lawsuit filed by a Jewish congregation in Florida, arguments over religious liberty and the separation of church and state will come into play.
Still other cases could be filed as states try to sort out whether abortion bans in place before Roe was decided, sometimes referred to as “zombie laws,” apply now that there is no federal protection for abortion:
• For instance, Wisconsin passed a law in 1849 banning abortions except to save the life of the mother. Attorney General Josh Kaul, a Democrat, said he does not believe it is enforceable. Abortion opponents have called on lawmakers to impose a new ban.
In the meantime, Planned Parenthood of Wisconsin said it immediately suspended all abortions, though the district attorneys in Madison and Milwaukee have both suggested that they would not enforce the ban.
•In Michigan, Planned Parenthood challenged a 1931 abortion ban ahead of last week’s Supreme Court ruling. In May, a judge said the ban could not be enforced because it violates the state’s constitution. Abortion-rights supporters are now trying to get a proposed state constitutional amendment on the ballot in November to protect abortion and birth control.
Idaho, Oklahoma and Texas have adopted laws that allow people to seek bounties against those who help others get abortions. It is an open question as to whether that means people can be pursued across state lines, and legal challenges over those issues are likely to come up in cases of surgical abortions and those using medicine mailed to patients.
The California Legislature, controlled by Democrats, passed a bill Thursday to shield abortion providers and volunteers in the state from civil judgments imposed by other states. In liberal Massachusetts, Gov. Charlie Baker, a Republican, signed an executive order Friday that prohibits state agencies from assisting other states’ investigations into anyone who receives a legal abortion in Massachusetts.