The anti-abortion movement is hitting an aggressive new stride in the United States. Whether it breaks into a sprint toward the Supreme Court is worrying reproductive rights activists amid a renewed push to reverse the long-standing precedent that legalized abortions.
As part of a frenzy of recent legislative activity, Alabama and Missouri last week sought to criminalize nearly all abortions in a bid to dismantle Roe vs. Wade, the landmark 1973 decision that legalized a woman’s right to have the procedure.
Ultra-conservatives hope to force the U.S. Supreme Court to revisit legal abortion through one of those cases. With the confirmations of justices Neil Gorsuch and Brett Kavanaugh, a 5-4 conservative majority now tilts the bench.
A handful of bills have also passed in Georgia, Kentucky, Mississippi and Ohio in recent months, in some cases banning abortions as early as after six weeks — before many women even realize they’re pregnant.
“The fact that these bills are passing in the lead-up to what will likely to be another emotionally charged election year adds to that feeling of imminence — that it’s now or never, because who knows what happens in 2020,” said Amy Swearer, a senior legal policy analyst with the Heritage Foundation, a conservative think-tank.
She said the country’s top court might begin “slowly allowing states to implement more types of restrictions at earlier points during the pregnancy.”
But a more dramatic attempt is underway to outright undo the abortion law, according to Mary Ziegler, a law professor at Florida State University and author of Beyond Abortion: Roe v. Wade and the Fight for Privacy.
Amplifying efforts, she said, is confidence from anti-abortion “absolutists” that efforts to take a direct shot at reversing Roe — rather than stripping it away via “death by a thousand cuts” — might actually succeed under the Supreme Court’s new composition.
“The absolutists traditionally weren’t that influential in the [Republican Party] because they weren’t that pragmatic,” Ziegler said. “They’re now gaining more power, in part, because they can convince state lawmakers in some places that there’s a chance the Supreme Court will uphold these kind of restrictive laws.”
The election of Donald Trump, she added, may have convinced Republicans to take a more hardline approach, as well as to appeal to an energized base, rather than to the majority of voters in the middle.
Asked if Roe vs. Wade was now in peril, Ziegler was unequivocal.
“The short answer is yes,” she said. “I would say Roe is safe if you’re interested in the next year or two — but not long term.”
Although some states have long aimed to restrict abortions by whittling away access, Alabama’s law targets Roe vs. Wade directly and is seen by critics as trying to trigger a fight in the country’s highest court.
“The difference is entirely strategic,” Ziegler said.
The Alabama law recently signed by the governor would be the tip of one spear. That bill seeks to ban abortion at any stage of pregnancy, including in cases of rape or incest. Doctors who perform the procedure could face up to 99 years behind bars. The only exception would be when a woman’s health is at serious risk.
Another frontal assault on Roe would be Georgia’s “heartbeat” bill, which bans most abortions after just six weeks.
“That’s not that different from an outright ban,” said Dick Howard, an expert on the Supreme Court and constitutional law with the University of Virginia. Such laws, he said, are almost certainly intended “to force their way onto the docket of the Supreme Court.”
Whichever cases are taken up come at the court’s discretion, so even a potential review of Roe vs. Wade by the justices would be seen as an opening for anti-abortion groups.
That’s due in part to the 1973 decision’s vulnerability. The law was built on a shaky legal foundation in the first place, Ziegler said.
Roe was premised on the idea of a “right to privacy.” Yet nowhere in the U.S. Constitution is abortion explicitly mentioned. That left it up to the justices during the original case to make inferences based on earlier decisions on issues like the right to privacy for contraception and parenting.
The justices concluded right to privacy should extend the right to cover abortion.
“People found that kind of unconvincing because, of course, it’s controversial whether the constitution recognizes the abortion right,” Ziegler said. “Progressive scholars pretty much immediately went to work identifying what they thought were better arguments for abortion rights.”
It would take four votes from justices to agree the case deserves review, explained Glenn Cohen, a bioethicist and lawyer with Harvard Law School.
“It’s the kind of case where they’re unlikely to take the case unless they have five votes to get rid of Roe v. Wade,” he said, as well as enough votes to overturn Casey vs. Planned Parenthood, the 1992 ruling that partially reaffirmed the abortion law.
Cohen said he can’t foresee both Gorsuch and Kavanaugh facially overruling Roe. And Chief Justice John Roberts, who is also a conservative, has shown himself to be an “institutionalist” keen to protect the court’s reputation, he added.
Harm to the court’s standing — either as a non-partisan branch of the government or as a body that respects determined precedent — might give the justices pause about whether to take on the case.
“If the court did uphold the Alabama law, then other states would be free to pass similar laws — and might,” Cohen said.
For her part, Georgetown University’s constitutional law scholar Susan Low Bloch doubts Roe will be overturned, at least in the short term.
Even if the individual state cases do as they were designed and get taken up by the Supreme Court, Bloch said she remains “absolutely confident they will find it to be unconstitutional and it will not require them to reconsider Roe v. Wade.”
The laws currently being passed are so “draconian” and “extreme,” she said, that she expects the court will easily find them to be unconstitutional.
“I don’t think Roe v. Wade will get overturned even in the foreseeable future. It will be chipped away at.”
The anti-abortion movement has thus far focused on making it harder to get the procedure via restrictions like requiring admitting privileges for doctors, imposing onerous licensing standards, demanding specific widths of corridors and requiring for multiple visits before an abortion is performed — rules that both increase costs and create barriers to access.
As Bloch sees it though, the Alabama law is an entirely different weapon — one that’s meant to bring the whole U.S. abortion law crashing down.
“That is not chipping away,” she said. “That’s a sledgehammer.”