Sept. 9 (UPI) — For the first time in many years, growing sentiment and a wave of new legislation at the state level is putting rising pressure on the U.S. Supreme Court to supersede its landmark 1973 ruling that legalized abortion nationwide.
So far, however, the high court has shown little interest in wading back into the issue, opting instead to let lower appellate courts sort it out. For activists, the inaction is part of the reason for their persistent efforts.
The last time the Supreme Court issued a ruling on the issue was three months ago, when justices affirmed an injunction against an Indiana abortion ban — saying part of the law that barred women from seeking abortions “clearly violate” Supreme Court precedent and the Constitution. A month later, the court refused to hear an Alabama case.
Chuck Donovan, president of the anti-abortion Charlotte Lozier Institute, said opponents are feeling confident a national movement is gaining traction and it might be a matter of time — and the right court case — before Roe vs. Wade is overturned.
“Pro-Lifers have fought Roe from the day it was announced,” Donovan said. “With the changes that have happened in the federal courts and the changes in science, there is optimism.”
Proponents for reform have made considerable effort to get the right case before the high court, since President Donald Trump appointed conservative justices Neil Gorsuch and Brett Kavanaugh. Vice President Mike Pence assured supporters the administration wants to put Roe vs. Wade on the “the ash heap of history.”
States that have passed stricter abortion laws
Several state legislatures with conservative majorities have passed a steady stream of new laws over the last two years to severely curtail access to and revoke the legality of abortion.
Georgia in May became the fourth state to pass what’s termed a “heartbeat” law, which bans any abortion after doctors can detect a fetal heartbeat — and that critics argue is before most women even know they’re pregnant.
A week later, Alabama approved a law under which physicians can be imprisoned for as many as 99 years for performing certain abortions. A similar ban in Missouri was supposed to take effect this month, but a federal court blocked it last month — as have judges in Kentucky, North Dakota and Iowa.
Donovan said, however, the Missouri law could be the one abortion opponents have been waiting for.
“[It] is an interesting law because it’s a smorgasbord of proposals, including one that outlaws abortion when the baby can feel pain at the 20 weeks’ gestation stage,” Donovan said. “That’s a provision that has about 70 percent public support.
“[The ban] dovetails into the stage of pregnancy where more babies are being treated in the womb either surgically, or around that time they can survive outside the womb. These are scientific medical facts that did not exist at the time of Roe vs. Wade.”
Supreme Court stays out
Jessie Hill, a reproductive rights expert at the Case Western University’s Social Justice Institute, said the Supreme Court so far has been stubbornly skittish on abortion — even in times it has tilted toward the right.
“I am personally not convinced the Supreme Court is going to decide on this anytime soon,” Hill said. “It perfectly possible that the appellate courts all strike down all of these laws, too, and the Supreme Court declines to hear them.
“There are some signs the Supreme Court is trying to stay out of this, at least for the short term. I don’t think they can put it off forever, but may not happen right away.”
When given the opportunity to take up and rule in on the matter recently, the high court — which returns for its next session Oct. 7 — has declined to do so.
In Indiana’s Box vs. Planned Parenthood in May, the court affirmed an appellate ruling that halted the state’s attempt to ban all abortions based on a fetus’s sex, race or disability. It did overturn the lower court on a portion of the bill that forces abortion providers to bury or cremate the remains.
A month later, the high court bench declined to hear a ruling that blocked an Alabama law to outlaw a commonly used surgical abortion procedure in the second trimester. Experts said the law had the potential to bar many abortions nationwide.
“[Indiana] was a classic civil rights case,” Donovan said. “It raised a fundamental question. We have comprehensive civil rights laws protecting people on the grounds of disability, race and sex, but it’s legal to take a baby’s life in the womb on these grounds?”
Alexis McGill Johnson, acting president and chief executive of Planned Parenthood, argues it’s the rights of the women that are under attack.
“These unprecedented attacks on our rights and freedoms have also spurred a counter-movement — reproductive health champions passing state policies that create critical backstops for patients in states,” McGill Johnson said in a statement to UPI.
“With our partners and Planned Parenthood’s 13 million supporters, we’ll fight with every tool at our disposal to ensure access to abortion remains a reality for every American, regardless of their ZIP code or insurance coverage — no matter what.”
If Roe vs. Wade was overturned
If the growing movement at some point succeeds, what would happen? Contrary to some belief, it wouldn’t automatically bar the procedure everywhere in the United States.
Experts and observers say the issue — whether abortion is legal or not — will be left up to individual states. Conservative states like Texas and Georgia likely will bar the practice, and more progressive states like California and New York probably will continue to protect them.
Another potential avenue for opponents is to push for a constitutional amendment, which would bar abortion nationwide. The last attempt at writing an abortion ban into the Constitution occurred, unsuccessfully, in 1983. And both Donovan and Hill say the chances of another effort succeeding are next to zero.
But, if the Supreme Court ultimately ruled against its 46-year-old decision?
“What we’ve had with Roe vs. Wade was a very unpopular decision and we’re still debating it, and elections are still being decided on it,” Donovan said. “I think you’re going to see vigorous debates and you’ll see places where abortions are rare and see very radical states where abortion is legal.”
Hill said it would turn back the clock on reproductive rights — and make abortion available mostly only to women with money, who can travel somewhere for a legal procedure.
“If Roe is overturned, there’s still going to be a lot of questions,” she said. “Can [laws] forbid travel out of state to get an abortion? Will it be banned if the mother’s health at risk? One thing to clear. Overturning Roe would not settle things once and for all.”
