The Supreme Court is expected to announce as early as next week whether it will hear a case challenging the Roe v. Wade decision that legalized abortion nationwide.
The case is an appeal from Indiana that seeks to enforce a 2016 state law that makes it illegal for women to have an abortion on the basis of race or sex or because they learn they will otherwise give birth to a baby with Down syndrome.
If taken up, the case will be the first direct challenge to abortion rights since conservative Justice Brett Kavanaugh joined the Supreme Court. The justices privately reviewed the case on Friday, and at least four need to agree to accept a case for it to be taken up.
State lawmakers in Indiana appealed the case about a week after Kavanaugh was sworn in, arguing that “technological advances have improved … prenatal testing that screens for Down syndrome and other fetal abnormalities,” which results in most women choosing abortion when they receive a diagnosis.
The latest available data, from 1995-2011, show that 67 percent of pregnancies that test positive for Down syndrome end in abortion. Pregnant women can screen for Trisomy 21, a chromosomal abnormality, through a blood sample.
The Indiana abortion ban was signed by Vice President Mike Pence, who was governor of the state at the time. It contains exemptions for conditions that “with reasonable certainty result in the death of the child not more than three months after the child’s birth.”
In 2016, a federal judge blocked the Indiana law from going into effect, and a 3-0 ruling in the 7th Circuit Court in Chicago ruled it unconstitutional. They pointed to the Supreme Court’s Roe decision, saying the choice to have an abortion was not up to the government but was to be a decision between a woman and her doctor. In June, a dissenting opinion urged the appeals court to reconsider its ruling, with one of the judges saying that the Supreme Court had not ruled on what he termed a “eugenics statute.”
The question over whether Kavanaugh would cast a deciding vote to overrule or weaken Roe featured prominently in Democratic attacks early during his confirmation hearings. Later, the messaging centered primarily on sexual assault allegations from Christine Blasey Ford, who said he touched her inappropriately and covered her mouth while he was drunk and they were both in high school.
When asked by senators about abortion, Kavanaugh cited Roe and Planned Parenthood v. Casey, decisions that legalized the procedure nationwide up until fetal viability, generally understood as up to 24 weeks. Casey allowed states to regulate abortion but prohibited them from placing an “undue burden” on women who seek an abortion.
Kavanaugh did not say during the hearings how he would rule on abortion or whether he believed women had a right to abortion, stressing instead that Casey created a “precedent on precedent.”
In December, the Supreme Court declined to hear a case questioning whether individuals on Medicaid who received medical care from places such as Planned Parenthood have the right to challenge a state’s decision to cut off funding from the organization. Justice Clarence Thomas, who authored the dissent, accused the justices of avoiding the legal issue in question because it involved Planned Parenthood. The Supreme Court demonstrated reluctance to taking up some of the most controversial cases following the bruising confirmation battle Kavanaugh faced.
