Abortion laws on collision course
States’ ultimate goal is the Supreme Court
WASHINGTON – Red-state governors and legislators are rushing to enact tough laws against abortion in hopes that a more conservative Supreme Court is ready to rule favorably.
There’s one problem: The laws conflict with Supreme Court precedents. And the justices aren’t likely to reverse themselves anytime soon.
The flurry of anti-abortion action comes mostly in the form of “fetal heartbeat laws” in states with Republican governors and legislatures. The laws, enacted in Ohio, Georgia, Kentucky and Mississippi, would ban abortions after about six weeks of pregnancy.
The goal is to produce lawsuits that work their way through lower courts and, ultimately, to the nation’s highest court. That didn’t work in North Dakota, where a fetal heartbeat law that was struck down failed to gain Supreme Court review in 2015. The Alabama Legislature could go further by passing legislation that would make nearly all abortions illegal, except to save the mother’s life.
“Legislatures feel emboldened by this change on the court,” said Caitlin Borgmann, a former law professor leading the American Civil Liberties Union of Montana. “They’re going to be willing to try to push the envelope.”
Conservatives’ hopes focus on Associate Justice Brett Kavanaugh, who succeeded Anthony Kennedy in October. Kennedy cast deciding votes to uphold abortion rights in a landmark case in 1992 and to strike down state restrictions in a Texas case three years ago.
Kavanaugh’s only brush with abortion on the U.S. Court of Appeals for the District of Columbia Circuit came in 2017, when he dissented from a decision allowing an undocumented teenager in federal custody to get an abor-
tion. Kavanaugh wanted to allow more time for the girl to find a private sponsor, so the government was not involved.
During his contentious Senate confirmation battle last year, he referred to the Supreme Court’s 1973 Roe v. Wade decision that legalized abortion nationwide and subsequent rulings as “precedent on precedent.” That won him the crucial support of moderate Republican Sen. Susan Collins of Maine.
“Justice Kavanaugh owes his seat to Sen. Collins,” said David Garrow, a Pulitizer Prize-winning historian who wrote a book on Roe v. Wade. “Is he going to publicly humiliate Sen. Collins in advance of the 2020 election?”
What the court is more likely to do is whittle away at abortion rights by upholding laws that impose lesser limits on women seeking abortions or the doctors and clinics that provide them.
Among the laws pending before or approaching the justices:
❚ An Indiana law, struck down in lower courts, that would ban abortions based on sex, race or disability and set standards for disposing of fetal remains.
❚ Another Indiana law that would require women to view ultrasound images at least 18 hours before an abortion unless they specifically declined to do so.
❚ Laws in Alabama and Texas banning dilation and evacuation, or D&E, abortions.
❚ Laws in Louisiana and Missouri imposing limits on doctors and clinics.
❚ Laws banning abortion after a certain number of weeks – 15 in Mississippi and Louisiana, 18 in Arkansas and Utah. Bans at 20 weeks or later generally have been upheld.
State laws directly challenging the right to abortion stand little chance of reaching the justices, experts on both sides of the debate say. Those laws have yet to withstand lower court scrutiny.
One indication of the court’s reluctance to enter the abortion wars came in February, when Chief Justice John Roberts joined four liberal justices in blocking a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals. The court may consider that case next term.
“Chief Justice Roberts is acutely aware of the political optics of overruling Roe in a 5-4 opinion, with all the women in dissent,” said Teresa Collett, a professor at the University of St. Thomas School of Law in Minnesota. That would be Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, all liberals who have voted to uphold abortion rights.
Kavanaugh sided with the court’s other three conservative associate justices against blocking Louisiana’s abortion restrictions. He wrote separately to suggest that implementing the law would determine whether it imposed too much of a burden on women’s rights – an indication he remains on the fence.
Another sign of the court’s reluctance came in December, when only three conservative justices dissented from its refusal to consider efforts by Republicanled states to defund Planned Parenthood. Roberts and Kavanaugh did not join the dissent.
The justices may get another chance to decide that question soon. The U.S. Court of Appeals for the 6th Circuit ruled in March that Ohio can deny government funding to private groups that provide abortions, such as Planned Parenthood.
It seems unlikely the justices will be able to avoid all abortion cases for long – or even until the 2020 election. That won’t stop them from trying.
“If there are five votes to fully overturn Roe,” said Cornell Law School professor Michael Dorf, “at least one of those, namely Roberts, is going to want to go slowly.”
New Associate Justice Brett Kavanaugh, right, joins his colleagues at the State of the Union address in February.