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‘Huge numbers’ of abortion cases heading to Supreme Court to test limits of Roe v. Wade

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WASHINGTON – When Donald Trump ran for president in 2016, he promised to put the Supreme Court on a path to "automatically" overturn the decades-old precedent in Roe v. Wade establishing a woman's constitutional right to abortion.

Five years and three Supreme Court nominees later, conservatives see a wave of pending abortion appeals as the best chance in a generation to test that commitment. By announcing Monday it will hear a challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy, the high court signaled it is ready to take another look.     

With six conservatives on the nine-member court for the first time in decades and confusion over a 2019 Supreme Court decision scrambling lower courts, anti-abortion lawmakers and advocates are leaning in to test the limits of the 1973 Roe decision and a landmark 1992 case that controls when states may regulate the procedure.

The court's decision to consider the Mississippi ban – a ruling  is likely next year – may be the first of many such appeals on the way

At least 23 abortion-related cases are pending in federal appeals courts, according to the anti-abortion advocacy group Susan B. Anthony List. Conservative states are rapidly passing laws. Lawmakers have enacted 61 abortion restrictions this year, compared with 42 at the same point in 2011, the previous year with the highest number of such laws, according to the Guttmacher Institute, a research group that supports abortion rights. 

Here's how different states use 'heartbeat' bills, Roe v. Wade, to address abortion rights
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"What we're seeing is huge numbers of abortion restrictions being passed at the state level," said Julie Rikelman, litigation director at the Center for Reproductive Rights. "And it's clear that it's all part of a coordinated national strategy to either make abortion completely inaccessible or to push it out of reach through any means necessary."

Two trends drive optimism among anti-abortion groups: a more conservative Supreme Court and a number of diverging opinions in federal appeals courts over how to interpret similar laws, creating "circuit splits" that only the Supreme Court can resolve. Appeals courts in Chicago and St. Louis, for instance, have blocked abortion bans in cases in which a fetus received a diagnosis of Down syndrome. An appeals court in Ohio upheld a similar ban last month, allowing the law to stand.  

"Pro-life activists have new hope that the Supreme Court will address the abortion issue," said Mallory Quigley, spokesperson for Susan B. Anthony List. "None of these splits guarantees a pro-life outcome from the court, although we are hopeful given the new makeup of the court post the Trump-Pence administration."     

After dodging the abortion issue in a number of recent cases, the court surprised some observers Monday by announcing it would hear the appeal out of Mississippi, one of several states banning abortion before the point a fetus is viable outside the womb, the standard set by the Planned Parenthood v. Casey decision in 1992. Lower courts tossed Mississippi's law, asserting it ran afoul of the precedent set in that landmark decision. 

Mallory Quigley, spokesperson for Susan B. Anthony List
Pro-life activists have new hope that the Supreme Court will address the abortion issue.
Undercutting v. overturning Roe

Undercutting v. overturning Roe

Many of the appeals pending in lower courts aren't a direct challenge to Roe but are instead intended to chip away at Casey, which held that states may regulate abortion if they don't create an "undue burden" on a woman's right to end a pregnancy.

Some of the laws require a woman to wait 48 hours before obtaining an abortion. Others ban the procedure if it's for a certain reason, such as a genetic abnormality. Some involve banning the type of abortion procedure used. Abortion rights advocates say all of them are backdoor efforts to undermine a woman's ability to end a pregnancy.

Some experts saw the decision to hear the Mississippi case as a sign that at least some of the conservatives want to reconsider the legal framework created by Roe and Casey. It takes support from four justices to decide to hear a case and the backing of five to win it. 

"The justices have other cases in the pipeline that might have allowed them to chip away more gradually at Roe and Casey," said Kate Shaw, a professor at the Cardozo School of Law and a close observer of the Supreme Court. "The decision to take up the Mississippi case suggests to me that the contingent on the court that wishes to proceed more directly to reconsider the core of Roe and Casey has prevailed."  

Anti-abortion protesters wait outside the Supreme Court for a decision on a Louisiana case, Russo v. June Medical Services, on June 29, 2020.
Anti-abortion protesters wait outside the Supreme Court for a decision on a Louisiana case, Russo v. June Medical Services, on June 29, 2020. Patrick Semansky, AP

Experts said the increase in abortion restrictions is a trend that took off after Trump named Associate Justice Brett Kavanaugh to the Supreme Court in 2018. Some of the challenges to the laws from that period are just now making their way to the court.

"The question really is, what kind of conservative is on the court?" said Mary Ziegler, a Florida State University law professor, adding that the answer will determine what types of cases the justices agree to hear and how quickly and expansively they rule. 

Ziegler said several of the justices may look for appeals in which they can make a "credible case that they're extending precedent rather than just steamrolling it."

Challenging viability 

Challenging viability 

It took the Mississippi Legislature less than three months to pass a ban on most abortions after 15 weeks of pregnancy in 2018. It took nearly a year for the Supreme Court to agree to hear the case challenging the law's constitutionality.

The Mississippi case, Dobbs v. Jackson Women’s Health Organization, which was filed at the Supreme Court in June, confounded court watchers because of the unusually long time the justices took in deciding whether to hear it. The decision to do so drew cheers from anti-abortion groups and alarm from others.

Mississippi's law could have profound implications for abortion rights because by setting a date after which abortions are no longer permitted, the state challenges the viability standard, which guarantees women a right to an abortion before a fetus can survive outside the womb. Abortion rights groups say that if a 15-week ban is permitted, why not a 10-week ban, a six-week ban or a prohibition at conception? 

"Roe's viability line is arbitrary," the state's attorneys told the court last year. "It makes little sense to say a state has no interest in protecting the infant's life." 

Mississippi state attorneys
Roe's viability line is arbitrary. It makes little sense to say a state has no interest in protecting the infant's life.

Fifteen states besides Mississippi tried to ban abortions before viability but were blocked in court, according to the Guttmacher Institute.

An appeals court in Richmond, Virginia, heard arguments this month in a case involving a 20-week ban imposed in North Carolina. A federal appeals court in Cincinnati heard arguments last month over a challenge to a Tennessee law banning abortions after the point a fetal heartbeat can be detected, which is as early as six weeks. The appeals court in St. Louis is considering a Missouri law that bans abortions after eight weeks.

Experts predicted most of those cases would be put on hold until the Supreme Court issues a decision on the Mississippi law.  

Giving reason 

Giving reason 

When the Cincinnati-based U.S. Court of Appeals for the 6th Circuit upheld Ohio's ban on abortions after a fetal diagnosis of Down syndrome last month, the decision drew national headlines. A less noticed development: Arkansas officials filed an appeal at the Supreme Court days earlier asking the justices to uphold a similar law.

Ohio's Republican-controlled Legislature passed its law in 2017, imposing criminal penalties on doctors who perform abortions if they're aware that a Down syndrome diagnosis, or the possibility of a diagnosis, is the reason for seeking the procedure. Arkansas passed its law two years later, joining 17 other states that enacted bans on abortions based on sex, race or genetic anomalies. 

“A case like this may be appealing to the anti-abortion wing of the court, because it could allow [it] to create a significant carve-out from the protections of Roe v. Wade, while opportunistically parroting the language of ‘anti-discrimination,’” said Jessie Hill, a professor at the Case Western School of Law who argued against the Ohio law in court. 

Discrimination against the fetus is precisely the argument supporters of the law have made. The position was bolstered by a concurring opinion in 2019 written by Associate Justice Clarence Thomas, who compared the idea of permitting abortions based on sex, race or disability to a modern-day "eugenics movement." The 6th Circuit cited Thomas' concurrence last month, finding the state has an interest in blocking discrimination. 

Mike Gonidakis, president of Ohio Right to Life, said he was "elated" that the 6th Circuit "sided with justice and against discrimination" in the opinion April 13. "Ultimately, this vital anti-discrimination law could be the vehicle which overturns Roe v. Wade."

Mike Gonidakis, president of Ohio Right to Life
Ultimately, this vital anti-discrimination law could be the vehicle which overturns Roe v. Wade.
Methods, waiting periods

Methods, waiting periods

Another set of challenges likely to make their way to the Supreme Court involves the methods used for the procedure. At least a dozen states banned dilation and evacuations, a procedure commonly known as "D&E," for instance. All but three of the bans were blocked by federal courts, according to Guttmacher.

The justices ducked the issue in 2019, declining to let Alabama defend its D&E ban after the U.S. Circuit Court of Appeals for the 11th Circuit struck it down. Opponents of the method, which involves removing a fetus with instruments, call it fetal "dismemberment." Abortion rights groups say it is the safest and most common second-trimester abortion procedure.  

Activists supporting legal access to abortion protest outside the Supreme Court on March 4, 2020, as justices hear oral arguments regarding a Louisiana law in the court's first major abortion case in years.
Activists supporting legal access to abortion protest outside the Supreme Court on March 4, 2020, as justices hear oral arguments regarding a Louisiana law in the court's first major abortion case in years. SAUL LOEB, AFP via Getty Images

A Texas ban on the procedure is pending in the New Orleans-based U.S. Court of Appeals for the 5th Circuit. Approved in 2017, the Texas law was struck down by a three-judge panel of that court last year and is being considered by all of the circuit's judges.

Another set of challenges working through the courts involves extended waiting periods. The Supreme Court upheld Pennsylvania's 24-hour waiting period in the Casey decision in 1992, but some states expanded those waits to two and three days. 

An appeals court in Cincinnati scheduled arguments next month in a challenge to Tennessee's 48-hour waiting period. A district court blocked the law last year.

Ziegler, the Florida State University law professor, said that efforts by some states to ban abortion at conception or when a heartbeat is detected have drawn media interest but that some of the more incremental approaches – such as waiting periods – are the sleeper story of the decades-long legal battle over abortion. 

"Some of the somewhat more incremental regulations, I think, have garnered more attention from the lower courts," she said. "There are lots of new things entering the pipeline." 

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