ISSUE ADVISORY: CASES CHALLENGING ROE V. WADE APPROACH SUPREME COURT – PART TWO

February 21, 2019

Earliest Possible Cases Heading to the Court

One of the cases on this list more likely to reach the Supreme Court is Box v. Planned Parenthood of Indiana and Kentucky Inc. Regarding a 2016 Indiana Law signed by now-Vice President Mike Pence, this case concerns anti-abortion measures that would dictate women not terminate a pregnancy for the fetus’ race, gender, national origin, ancestry or genetic abnormality, and require healthcare facilities bury or cremate the fetus, even in cases of miscarriage. The U.S. District Court for the Southern District of Indiana issued an injunction in 2016, which was upheld by the Seventh Circuit. Anti-abortion forces have petitioned this case to the Supreme Court in hopes that the injunction will be lifted.

Another pressing case is June Medical Services v. Gee. This case concerns a Louisiana law like the 2016 Texas one in Whole Woman’s Health v. Hellerstadt. The law in question requires doctors who administer abortions to have “active admitting privileges” at a nearby hospital. After the Fifth Circuit refused to issue an injunction,on January 28th, two Louisiana abortion providers asked the Supreme Court to block the lower court ruling temporarily so they can file a petition for official review. The Supreme Court issued a temporary stay on the law on February 7, but it is likely to come back to the Court for a full hearing. As Dahlia Lithwick put it in a Slate article, “[This was an] opportunity to allow lower courts to carve a tunnel through Roe while the Supreme Court pretends it doesn’t see the shovels and piles of dirt.” Justice Roberts, perhaps, did not want to defy precedent so openly as part of an emergency petition so he sided with the liberal justices to issue the stay, but the case could go the other way when oral arguments are presented to the Court. Some close observers have said that this case could effectively end access to abortion care.

See NOW’s case tracker for more information about the status of the rest of the cases on the list. (CLICK HERE)

HOSTILE LAWS IN THE STATES

Many of the concerning cases regard newer state laws that attack abortion rights on unconstitutional grounds. According to the Guttmacher Institute, in 2018, 15 states adopted 27 new restrictions on abortion and family planning, 23 of which are specifically targeted towards limiting or removing a woman’s right to an abortion. While this number is low compared to past years (in 2017, states added 63 new restrictions), the specifics of the proposed laws are especially hostile.

Iowa’s ‘heartbeat’ abortion bill stands above the rest in terms of its extremity. While Iowa already has a bill that bans most abortions after 20 weeks, Iowa Gov. Kim Reynolds (R) signed a law that banned all abortions more than six weeks after the woman’s last menstrual period. Iowa lawmakers have made their intentions clear in proposing this bill. The floor manager, Rep. Shannon Lundgren (R) said, “It is time for the Supreme Court to weigh in on the issue of life.” Iowa anti-abortion advocates want this bill to reach the Supreme Court, and made it extreme in hopes that it will get there. Thankfully, Polk County District Judge Michael Huppert found that the law violates the Iowa State Constitution. He referenced Iowa Supreme Court’s Planned Parenthood v. Reynolds decision, which upheld Iowa women’s right to abortions. This outcome again emphasizes how essential lower courts are in protecting abortion rights.

So-called ‘heartbeat’ bills have arisen in other states, Ohio among them. In 2018, Governor John Kasich (R) vetoed the controversial Ohio ‘heartbeat’ abortion bill, though he upheld a ban on 20 week abortions, and banned dilation and evacuation procedures. New Ohio Gov. Mike DeWine (R) has vowed that if the bill returns, he will allow it to pass. In Tennessee, Republican lawmakers are likely to propose a similar bill in the current session. Gov. Bill Lee (R), has already declared his support. Despite the Iowa ruling, states are still likely to propose similar bills in the future, with the hope that theirs will be the one to reach the Supreme Court, and overturn Roe.

In 2018, Louisiana and Mississippi also implemented measures that ban abortion at 15 weeks. Both were struck down, and are laws of concern on the list of potential Supreme Court cases. The attacks on abortion rights are endless, with bans of dilation and evacuation procedures (D&E) popular. D&E is the standard abortion method in the second trimester. Kentucky and Ohio banned the procedure this year, though the Kentucky ban was blocked.

WHAT A POST-ROE WORLD WOULD LOOK LIKE

What does a world look like where Roe v. Wade has been overturned? If Roe is overturned, decisions regarding abortion go back to the states. Since women would no longer have the constitutional right to an abortion, state laws that completely ban all abortions would be in force. Women in states where abortion is illegal would have to travel out-of-state to receive their healthcare.

How does that play out in the daily lives of women? For a good picture, turn to states with some of the most restrictive abortion laws in the country. Wyoming, North Dakota, Missouri, Mississippi, South Dakota, West Virginia, Kentucky, and Arkansas all essentially have one abortion provider. Kentucky is trying to get rid of its last one. In Texas, 96% of counties don’t have a clinic. The Latina Institute for Reproductive Health found that 100,000 to 240,000 Texas women (1.7% of women in Texas) have tried to induce an abortion on their own. The reason is that they do not have the funds to travel long distances across the state to abortion clinics. Self-induced abortions have become much safer than they were before Roe v. Wade was passed, but that does not mean that women should be shamed by choices concerning their own bodies. With or without Roe, these women are suffering without full access to their constitutional right to an abortion.

According to the Center for Reproductive Rights, nine states currently have constitutions that protect an individual’s right to an abortion. These are Alaska, California, New Mexico, Montana, Minnesota, Iowa, New Jersey, Massachusetts, and Florida. Washington, Oregon, Hawaii, Nevada, California, Maryland, Delaware, Connecticut, and Maine also have statutory protections of abortion. All that aside, 11 states have Pre-Roe bans still intact, 21 have Pre-Viability bans, and four have trigger bans. In total, 24 states, or 50% of the United States will likely ban abortion if Roe v. Wade is overturned.

The Trump administration has also launched attacks related to insurance coverage on abortion, with the potential to reduce access for millions of women. The proposed rule adds taxing and costly burdens onto insurers who cover abortions, dissuading them from covering it in the future. Under two other proposed rules from the Departments of Health and Human Services, Treasury, and Labor, the Trump administration has also tried to reduce access to birth control. Employer-provided health insurance plans can be exempt from the contraceptive coverage mandate because of sincerely held religious beliefs. The rules also provide allow nonprofits and small businesses to object for moral reasons. The second final rule provides protections to nonprofit organizations and small businesses that have non-religious moral convictions opposing services covered by the mandate.

HOW STATES CAN PROTECT ABORTION RIGHTS

Just as states have the power to harm abortion rights, they also have the power to protect them. States can do this in numerous ways, as explained by the Guttmacher Institute:

  • By affirming the individual’s right to an abortion
  • States can protect abortion rights in their state constitution or through statutory protections.
  • By providing abortion coverage
  1. States can lift state bans on Medicaid coverage of abortion, by stopping limitations from the Hyde Amendment.
  2. By providing medically-accurate information     
  3. 30 states have “abortion counseling” to prevent women from getting an abortion. States should instead remove politics and allow abortion providers to share accurate information.
  4. By not punishing minors
  5. States can allow minors to get abortions without parental involvement through a variety of means ranging from policies that affirm the rights of young people to policies that require counseling from the provider.
  6. By protecting clinics
  7. Abortion providers cannot do their job effectively if they are not protected from anti-abortion threats and violence.
  8. By allowing more abortion providers
  9. Abortion access is key. Eight states have only one effective clinic. By expanding access to abortion providers, states can protect abortion rights more effectively.

ACTION NEEDED

Abortion rights and Roe v. Wade are under severe attack.  As NOW affirms, issues related to women’s reproductive health are issues of life and death. States need to protect abortion rights now in the event that Roe v. Wade is overturned. Activists should meet with their state legislators and ask them to sponsor legislation to protect abortion rights such those that are described above. 

MORE INFORMATION:

Brookings:https://www.brookings.edu/blog/fixgov/2018/12/06/trump-impact-on-appellate-courts/

Center for Reproductive Rights: https://www.reproductiverights.org/what-if-roe-fell

Guttmacher Institute :https://www.guttmacher.org/article/2018/12/state-policy-trends-2018-roe-v-wade-jeopardy-states-continued-add-new-abortion?utm_source=Guttmacher+Email+Alerts&utm_campaign=5ecfd8f8a2-EMAIL_CAMPAIGN_2018_10_16_03_27_COPY_01&utm_medium=email&utm_term=0_9ac83dc920-5ecfd8f8a2-244272229

Guttmacher Institute: https://www.guttmacher.org/gpr/2019/01/ensuring-access-abortion-state-level-selected-examples-and-lessons?utm_source=Guttmacher+Email+Alerts&utm_campaign=5ecfd8f8a2-EMAIL_CAMPAIGN_2018_10_16_03_27_COPY_01&utm_medium=email&utm_term=0_9ac83dc920-5ecfd8f8a2-244272229

Guttmacher Institute: https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe

Lambda Legal: https://www.lambdalegal.org/sites/default/files/publications/downloads/2018_eoy_judicial_report.pdf

NARAL Pro-Choice America: https://www.prochoiceamerica.org/laws-policy/state-government/

Pew Forum:http://www.pewforum.org/fact-sheet/public-opinion-on-abortion/

Planned Parenthood: https://www.plannedparenthoodaction.org/blog/13-abortion-cases-kavanaugh-could-rule-on-right-away

Politico:https://www.politico.com/story/2018/11/05/trump-courts-elections-judges-960754

Slate: https://slate.com/news-and-politics/2019/02/roe-v-wade-overturned-abortion-june-medical-services-gee-roberts-court.html
Vox: https://www.vox.com/2018/9/7/17818458/brett-kavanaugh-supreme-court-n