A new report from Susan B. Anthony List’s Charlotte Lozier Institute details the many abortion laws that are currently enjoined as they sit in the courts. While many of these laws pose a direct challenge to Roe v. Wade, it is unlikely that these legal challenges will be heard or decided by the Supreme Court before the 2020 election.
The report, written by Charlotte Lozier Institute scholar Mary Harned, organizes the pending abortion laws into four categories: 1) Limits on tax funding for abortion providers; 2) Restrictions on abortion procedures and discriminatory abortions; 3) Health, safety, and informed consent laws; 4) Gestational limits on abortion. The legislation in the fourth category poses the most direct challenge to Roe v. Wade and its progeny.
Addressing the first category, several states have enacted laws to disqualify abortion providers from participating in Medicaid programs. Several circuit courts have ruled on these laws, and the results have been mostly favorable for the abortion industry. Kansas and Louisiana appealed to the Supreme Court on the matter in 2018, but the Supreme Court declined to hear the cases, so there is no federal precedent.
In the second category, 12 states have enacted bans on dilation and evacuation abortions, which are performed in the second trimester. As a video from Live Action demonstrates, this gruesome procedure involves ripping the baby’s limbs off one at a time.
In three states — Mississippi, North Dakota, and West Virginia — dilation and evacuation bans are active and have not been challenged in court. In the other nine states, the law is enjoined in court. A few weeks ago, the Supreme Court declined to review Alabama’s dilation and evacuation ban. Harned told the Washington Examiner that the Supreme Court likely declined to hear the case because there is not a “circuit split” on the issue, as every circuit court to rule on dilation and evacuation bans has struck them down.
Also within this category, 15 states have passed laws prohibiting abortions based on the child’s sex, race, or genetic anomalies such as Down syndrome. In May, the Supreme Court considered such a law in Box v. Planned Parenthood of Indiana and Kentucky Inc., but declined to rule on this provision of the law because there was no circuit split. In a Per Curiam opinion, the Supreme Court said, “Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
In the third category of laws, one of particular interest is an Indiana law that requires women to wait 18 hours after an ultrasound to get an abortion. The Seventh Circuit Court shot it down, but Indiana is appealing to the Supreme Court once again to see if they have better luck with this law.
Both of these Indiana laws are have a much smaller impact than gestational bans on abortion, but they still save lives. Additionally, under the “undue burden” standard established in Planned Parenthood of Southeastern Pennsylvania v. Casey, these laws could certainly be passed without technically overturning any previous decisions. For example, a court could decide by its own judgment that banning abortions on babies with Down syndrome does not impose an “undue burden” on women and uphold the law. These laws are much more likely to be upheld than laws that pose more of a “burden” to women seeking abortions.
Laws in the fourth category, which are abortion bans based on gestational age, pose the most direct challenge to Roe. An example of this would be “heartbeat laws” that ban abortion after six weeks. Mary Harned told the Washington Examiner that such a law will probably not come before the Supreme Court prior to the 2020 election. “That is unlikely. They are early in the appeals process,” Harned said. “Further, the court is unlikely to take a gestational ban case without a circuit split.”
To summarize, the key takeaways from the new Charlotte Lozier Institute report are this:
1) The sheer quantity of abortion laws sitting in court reaffirm that abortion should be a state issue, not a federal one. The Constitution gives no power to the federal government to regulate abortion, and people should decide what abortion regulations they want within their own state. For so many states to be unable to enforce their own laws on this matter is unconstitutional and undemocratic.
2) There are a significant number of abortion restrictions that states can potentially pass without Roe v. Wade being overturned. This includes the laws the Supreme Court has yet to rule on, as well as laws already enacted in many states such as parental consent laws, mandatory ultrasounds, and informed consent laws, which require the mother to be informed on what happens during the abortion procedure.
3) Though many anti-abortion advocates are upset the Supreme Court is unlikely to hear a direct challenge to Roe v. Wade soon, this means there is potential to get another conservative justice (or two) confirmed to the Supreme Court first, especially if President Trump wins reelection. This would significantly increase the probability of Roe v. Wade being overturned. Justices Ruth Bader Ginsburg and Stephen Breyer, both of whom are at least 80 years old, could be replaced by conservative judges, giving the Supreme Court a 7-to-2 conservative majority.
Final takeaway: There has never been a more hectic time to follow American abortion legislation than right now, and anti-abortion advocates should be energized by the opportunities that lie before us.
