The US Presidency: Abortion at the threshold

Michael Goldhaber, IBA US Correspondent

All nine states are attempting to force the US Supreme Court to either void their new laws, or overturn its landmark 1973 decision, Roe v Wade, which held that the US Constitution protects a pregnant woman's freedom to choose to have an abortion until the fetus is medically viable (now on average about 24 weeks into pregnancy).

The sponsor of Alabama’s extremely restrictive law, State Representative Terri Collins, publicly admits that her aim is ‘to get this case in front of the Supreme Court so Roe v Wade can be overturned’.

The bans on abortion as early as six weeks have also proven highly controversial. ‘Six weeks of pregnancy is just two weeks after the average woman misses her period,’ notes Shannon Brewer, who directs Mississippi’s last abortion clinic. That leaves no time for the lower-income women who dominate her clientele to save money, arrange time off, and travel to a distant clinic.

‘Those laws – six weeks, Alabama, whatever – under current law are one hundred percent unconstitutional,’ says National Right to Life general counsel James Bopp, Jr. ‘Any prohibition prior to viability, there's simply no question under current law that it’s unconstitutional. And so [if] you prohibit all abortions for any period prior to viability, no federal judge in the United States is going to vote to uphold [any] of those laws. Georgia, Alabama, 15-week bans – just not gonna happen.’

As a matter of law, Rikelman agrees with this assessment. ‘It’s really important to recognize that the bans are extreme and outrageous and unconstitutional,’ she says. But she also stresses that the pro-life movement is pursuing a parallel strategy: ‘to eliminate access to abortion at the state level with one restriction after another restriction after another restriction even while Roe remains the law.’

Rikelman cautions: ‘Even if all of these bans are struck down by the courts – as they should be because they are clearly unconstitutional -- the other strategy continues and it is just as dangerous.’

By Rikelman’s count, states have passed over 400 abortion restrictions since 2010, mostly in the South and Midwest. Of the dozen or so now under challenge in the federal circuit courts, most don’t regulate when women can get an abortion, but rather how or why or with whom. So-called TRAP laws impose ‘targeted regulation on abortion providers’. Their sponsors say these laws aim to protect health. But their real objective, pro-choice lawyers argue, is to force embattled abortion clinics to close by imposing requirements that are difficult to meet (for instance, specifying how wide a hallway must be).

‘In many places access to abortion is already hanging by a thread,’ notes Rikelman. Six states are down to one abortion clinic (Missouri, Kentucky, Mississippi, West Virginia, and the Dakotas). In May, regulators tried to close Missouri’s last clinic for alleged health code violations. A state judge temporarily blocked the closure, while a commission has given the clinic more time to resolve its licensing dispute.

The case of June Medical Services, LLC v Gee will decide whether Louisiana becomes the next state with only one abortion clinic – down from eleven a decade ago. The Center for Reproductive Rights is challenging a Louisiana ‘TRAP law’ requiring each doctor to obtain admitting privileges at a local hospital. Some Court watchers view June Medical as likely to be the Court’s next major abortion case, in part because the Court reached out to stay the law pending the plaintiffs’ petition for certiorari.

Rikelman expresses confidence that the Supreme Court will void the law summarily, because it voided a nearly-identical Texas law only three years ago. But the replacement of Justice Anthony Kennedy with Justice Brett Kavanaugh introduces deep uncertainty. Many Court watchers think it’s less likely that the Court will overturn Roe in one fell swoop in a case like Alabama’s, than that the Court will chip away at Roe by overturning its precedents on precisely the sort of narrow but consequential abortion regulation presented in June Medical.

Justice Stephen Breyer appears to be concerned about the new majority’s disrespect for precedent. In this term’s California v Hyatt, the Court overturned its rule on states being sued in the courts of other states. On the face of it, this had nothing to do with abortion, but Breyer’s dissent could be interpreted as the most thinly veiled of references to Roe v Wade. ‘Today’s decision,’ he lamented, ‘can only cause one to wonder which cases the Court will overrule next.’