Abor­tion laws on col­li­sion course

States’ ul­ti­mate goal is the Supreme Court

USA TODAY International Edition - - FRONT PAGE - Richard Wolf USA TO­DAY

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 conflict with Supreme Court prece­dents. And the jus­tices aren’t likely to re­verse them­selves any­time soon.

The flurry 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 find a pri­vate spon­sor, so the govern­ment was not in­volved.

Dur­ing his con­tentious Se­nate confirma­tion 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 specifically 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 efforts 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 five 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.

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