What’s Next for Roe v. Wade?
On May 24, Judge Carlton Reeves granted a preliminary injunction against Mississippi’s six-week abortion ban, blocking it from going into effect—but as a federal judge for the Southern District of Mississippi, Reeves might have been feeling déjà vu.
Last year, Reeves had considered another Mississippi abortion law, this one a ban on abortion after fifteen weeks of pregnancy. Governor Phil Bryant (R) signed the fifteen-week ban into law on March 19, and a team of attorneys filed a lawsuit against it that same day. The attorneys were working on behalf of Mississippi’s last remaining abortion clinic, its staff, and its patients, and they were moving quickly for a reason: the clinic had a patient scheduled for a post-fifteen-week abortion the very next afternoon.
Hours before the patient’s appointment, Reeves granted a temporary restraining order against the ban to prevent it from being enforced while its constitutionality was litigated. In November, the court struck down the law permanently, declaring it “unequivocally” unconstitutional.
But in March 2019, almost exactly a year after the fifteen-week ban’s passage, Bryant signed the six-week ban that the Mississippi legislature had recently sent to his desk. In his May decision striking it down, Reeves wrote that the six-week ban “sure smacks of defiance to this court.”
“You don’t need to be a constitutional scholar to recognize that if a fifteen-week ban is unconstitutional, and it most certainly is, a six-week ban is too,” said Alexia Korberg in an interview with The Politic. Korberg is a part of the team of attorneys challenging the two bans, as well as Mississippi’s broader scheme of abortion regulations, in the case Jackson Women’s Health Organization v. Currier.
“So there’s no doubt,” said Korberg, “that the state of Mississippi passed a law that the legislature, the governor, and the attorney general all knew to be unconstitutional.”
Judge Reeves apparently agrees. Back in November, the court’s decision against the fifteen-week ban declared that Mississippi “chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.”
In cases involving the constitutionality of a law, federal judges in district and appellate courts are required to interpret the law through the precedents that the Supreme Court has laid out in previous cases. So for a case regarding abortion bans and regulations such as those passed in Mississippi, federal judges turn to the Supreme Court’s prior rulings on abortion in order to determine how to apply its established standards to the new cases brought before them.
This leads them to Roe v. Wade, the landmark case that first articulated a woman’s constitutional right to choose whether or not to terminate a pregnancy.* Decided over 40 years ago, Roe v. Wade is one of perhaps only a few Supreme Court decisions to have become a household name—and it has been both heralded and reviled since the day it was decided.
That day came in 1973, when the Court handed down Roe within the privacy line of cases. In two previous cases involving the use of contraceptives, Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the justices protected a “right to privacy” by arguing that the Constitution safeguards individuals’ private and intimate decisions regarding childbirth. “If the right of privacy means anything,” reasoned Justice William Brennan in Eisenstadt, “it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The right to privacy enshrined in these previous cases, the Court decided in Roe, includes a woman’s right to decide whether or not to terminate her pregnancy.
Yet even from the beginning, the Court was careful not to cast such a right as absolute. Writing for the majority of the Court in Roe, Justice Harry Blackmun cautioned that privacy did not mean that a woman may always terminate her pregnancy at any time and for any reason. Rather, he argued that states may still hold an interest in legislating to protect what they see as “potential life.” To reconcile these views, the justices protected abortion within the first trimester of pregnancy but allowed states to prohibit it during the remaining weeks.
Many states immediately took advantage of the Court’s leniency. “[B]etween 1973 and the early ’90s, there were continual efforts at the state level to essentially make abortion more difficult to obtain,” said Kathryn Kolbert in an interview for The Politic. Kolbert was the Constance Hess Williams Director of the Athena Center for Leadership Studies and formerly a professor in the Department of Political Science at Barnard College.
“But by 1991, all of us were convinced that the next case to the Court would be the one that would overturn Roe. And that was Casey,” she said.
That case, Planned Parenthood of Southeastern Pennsylvania v. Casey, was a challenge to Pennsylvania’s Abortion Control Act and heard by the Supreme Court in 1992. Kolbert argued Casey before the Court on behalf of Planned Parenthood and several other plaintiffs who opposed the law.
Casey also came on the heels of a major shift at the Supreme Court—President George H.W. Bush nominee Clarence Thomas had been confirmed to the bench just two weeks earlier. With the addition of Thomas to the Court’s ranks, “there was no doubt in our minds that there were five votes then on the Court to overturn Roe,” Kolbert said, “and we argued Casey with that in mind.”
But the Court didn’t use Casey to overturn Roe. Instead, the justices replaced the trimester framework with a viability standard, ruling that states could prohibit abortion only after viability. This is the point at which a fetus may survive outside the womb, and it usually occurs between 24 and 28 weeks of gestation. But even though Casey reaffirmed the right to an abortion, it significantly cut back on Roe’s protections by contending that states may regulate abortion before viability, as long as such regulations do not present an “undue burden” on a woman’s ability to access the procedure.
“In many respects, people have talked about Casey as the case that opened up greater regulation of abortion,” said Kolbert. But because the lawyers litigating on behalf of Planned Parenthood were so convinced that they would lose, she said, “Casey was a big victory, and it didn’t go as far as we thought they would.”
Roe and Casey still instruct federal judges to rule against laws such as Mississippi’s. As Judge Reeves indicated, Mississippi’s bans disregard the viability standard entirely, prohibiting abortion long before the 24-week mark.
“Courts should strike down all bans on pre-viability abortions as unconstitutional, as a matter of law,” said Korberg. “So a law banning pre-viability abortion—as both the six-week ban and the fifteen-week ban indisputably do—the Supreme Court has made clear that there is no state interest strong enough to support it, full stop.”
Yet a wave of restrictive abortion laws has swept through state legislatures in 2019. In addition to Mississippi, the states of Kentucky, Ohio, Georgia, Missouri, and Louisiana have all passed early-term abortion bans within the past several months. Most of these bans are framed as “heartbeat” bills, since they disallow abortion after the point at which electrical activity can be detected from the group of cells that will develop into a fetus’s heart. This activity can occur as early as six weeks into a pregnancy, and sometimes just two weeks after a missed period. For many women, this is before they have any idea that they may be pregnant.
It is the Alabama legislature, however, that has probably succeeded in passing the most restrictive abortion law in the nation. Signed by Governor Kay Ivey (R) on May 15, Alabama’s law makes it a felony for doctors to perform the procedure at any point after conception. Doctors found in violation could be sentenced to up to 99 years in prison.
Eleven other states are also considering either six-week bans—the so-called “heartbeat” bans—or bills that more closely resemble the law passed in Alabama.
“There definitely has been a transition that I’ve noticed this year,” said Rachel Reeves, an American Civil Liberties Union (ACLU) attorney working to challenge the six-week bans in Kentucky and Ohio. “Trump and Pence have been very clear about their desire to outlaw abortion, and I think that that has emboldened politicians at the state level to consider more outright attacks.”
Further encouraged by the fortified conservative majority now sitting on the Supreme Court, state lawmakers who oppose abortion have used the legislative sessions following Justice Brett Kavanaugh’s confirmation to enact laws that directly contradict Roe.
“As we’re thinking about litigating these cases, we definitely have the expectation that these states, as many of their lawmakers have said publicly, want these cases to go all the way up to the Supreme Court,” said Reeves.
“A concerted, national effort”
These 2019 bans are a part of a decades-long effort to curb abortion. Since Casey, many states have passed various restrictions on abortion providers and patients, creating wide differences in the national landscape of abortion laws.
According to Reeves, the ACLU attorney, states have passed more than 400 restrictions on abortion in the past ten years alone. “They’ve been restrictions on methods of abortion, timeframes during which abortion is legal, and restrictions on providers’ abilities to make it more difficult and more costly for them to operate, and also make the stakes for any sort of regulatory or compliance infraction much higher,” she explained.
Though legal challenges frequently rise in opposition to these laws, courts have allowed many of them to remain in place. As a result, fourteen states now require women to undergo specified “waiting periods” between when they initially visit a clinic and when they are able to access the procedure, and eighteen states mandate that they receive state-designed counseling beforehand. Missouri requires potential abortion patients to undergo an invasive pelvic exam, even when they are seeking medication abortions administered by pill. Eleven states restrict private insurers’ ability to cover abortion procedures, while the Hyde Amendment prohibits federal welfare programs from paying for them.
State regulations have also aimed at abortion clinics themselves, through “Targeted Regulations of Abortion Providers”—or TRAP laws—designed to make it more difficult and costly for clinics to stay open. Several states require abortion clinics to meet the same licensing standards as ambulatory surgical centers. These standards may include stipulations for physical features of the clinic, such as hallway width or emergency lighting, that are highly relevant to surgical centers but have no demonstrated effect on health outcomes for abortion patients. Thirteen states also place additional licensing requirements on the physicians who perform abortions, often requiring them to have admitting privileges at local hospitals. Because clinically-provided abortions are extremely safe, such admitting privileges are in fact unnecessary. They can also be impossible for abortion clinics’ physicians to obtain, either because of bias against abortion providers or quotas for the number of patients an affiliated doctor must admit to the hospital each year.
Over the past two decades, the U.S. has witnessed a dramatic decline in the number of remaining clinics. Today, six states—Mississippi, Kentucky, Missouri, North Dakota, South Dakota, and West Virginia—have only one remaining clinic.
“This is a concerted, national effort to eliminate access to safe and legal abortion,” said Reeves.
Furthermore, according to Korberg, “we know that for lower-income women, these types of regulations and burdens on access make it difficult, if not impossible, for them to access these services.” She pointed out that Mississippi, where more than a fifth of working-age women live below the national poverty line, is one of the states with a mandatory waiting period that requires patients to make two separate trips to the clinic. “And for someone who is living in poverty, who doesn’t have a car, where now we’ve eliminated all but one clinic in the state, that practical obstacle to access is nearly insurmountable.
“So there’s a way in which all of these laws not only work together to create this cumulative burden, but they intersect in ways with the demographics of Mississippi, and the practical reality of people’s lives in Mississippi, that make them even more burdensome,” she said.
TRAP laws have been challenged at the Supreme Court before. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court considered a Texas abortion law and ruled against two of its provisions. One of the provisions required doctors to obtain admitting privileges at local hospitals, while the other required clinics to meet the licensing standards of ambulatory surgical centers. Half of the state’s abortion clinics had closed during the time when these provisions were passed and enforced, and this led the Court to find that they violated Casey by presenting an “undue burden” on women seeking abortions.
Like these targeted regulations, the pre-viability bans that have recently gained traction are part of a long legislative campaign. In Ohio, for instance, conservative lawmakers have spent years pushing for their state’s six-week abortion ban.
In an interview with The Politic, Ohio state Senator Kristina Roegner summarized the purpose of the “heartbeat” bill, S.B.23, for which she was the primary sponsor. “Basically, upon the detection of a fetal heartbeat, an abortion is prohibited,” she said. Roegner frames S.B.23 as a measure aimed at protecting human life, and she believes that a fetal heartbeat is a clear indicator of when such life begins. In her view, this means that courts should use S.B.23 to replace the viability standard with that of a fetal heartbeat.
Roegner described how a bill closely resembling S.B.23 had been introduced in the Ohio legislature on four previous occasions since 2011, the year that she became a freshman member of the House. Before S.B.23, however, each attempt fell short of becoming law.
On the first two tries, the bill passed one chamber of the legislature only to fail in the other. On the third and fourth attempts, it was passed by both but vetoed by then-Governor John Kasich (R), who believed the law would be too costly to defend in court. The fourth bill’s failure, Roegner said, “was a heartbreaker, because a lot of people had come back [to Columbus] to override the veto, but it fell short by one vote.”
Despite this disappointment, she and other state lawmakers did not abandon the bill. At a Senate retreat a few months ago, Roegner asked her fellow senators individually if they would cosponsor the bill when she reintroduced it to the chamber. Seventeen of them agreed, a majority of the Ohio Senate’s 33 seats. “So right then I knew this bill was going to pass the Senate,” she said.
“I fully anticipate, and anticipated when we drafted the bill, that there would be lawsuits,” Roegner said, noting that several of Ohio’s previous abortion regulations have faced challenges in court. “So I would anticipate that the heartbeat bill will be challenged as well. But I would anticipate that eventually this will get heard by the U.S. Supreme Court; I think they’ll have to take this up because there are so many states that are starting to take a pretty strong stance, one way or another.”
S.B.23 became law on April 11 when it was signed by Governor Mike DeWine (R). On July 3, however, a federal judge temporarily blocked the law while he considers its constitutionality, similarly to how Judge Reeves blocked Mississippi’s version of the law.
“Right now, it’s out of the hands of the legislature and it’s into the hands of the judicial branch,” said Roegner, her voice optimistic. “And we’ll see where it goes from there.”
Avenues to the Supreme Court
According to Kolbert, the real issue isn’t how lower courts should rule—it’s how the Supreme Court does. “Any lower court should apply the existing law,” she said. “Now, that doesn’t mean they always will, because there’s always some renegade judges, but for the most part I think the issue is when it gets to the Supreme Court and whether there’s five votes on the Supreme Court to change Casey,” she said. “And I think there will be.”
It may be those renegade judges, however, who provide the opportunity for an appeal that reaches the Supreme Court.
The Court of Appeals for the Fifth Circuit, which hears cases from Louisiana, Texas, and Mississippi, is one of those courts that has not always applied the existing law. In the case June Medical Services v. Gee, a Fifth Circuit panel upheld a Louisiana law with nearly identical provisions to those of the Texas law that the Supreme Court found unconstitutional in Whole Woman’s Health. In February, the Supreme Court voted to enact a temporary stay against the law, preventing it from going into effect while the petitioners file an appeal and Louisiana receives a chance to respond.
Attorneys from the Center for Reproductive Rights, which is representing the petitioners in June Medical Services (in addition to several other clinics in current abortion-related cases across the country), believe that the Court need only apply the precedent of Whole Woman’s Health to find the Louisiana law unconstitutional. June Medical Services requires such a straightforward application of the precedent, they believe, that they are asking the Court for a summary reversal. This type of ruling would overturn the Fifth Circuit’s decision without the Supreme Court hearing oral arguments on the merits of the case.
It will be several months before the Supreme Court announces its decision as to whether to take the case. If it does, June Medical Services would present an opportunity for the justices to affirm or overturn their previous rulings on abortion.
But there are many other cases currently moving through lower courts that could provide just that same opportunity.
“The reality is that any abortion case, it doesn’t matter if it’s a ban or just a regulation, gives the Court the ability to change […] how they’re going to examine the constitutionality of abortion law,” said Kolbert.
The Court could do this in several ways. One course, unlikely though it may seem, would be for the Court to reaffirm the holdings of Roe and Casey without much substantive change. On the other hand, the Court could hear a challenge to a total or near-total abortion ban and use the opportunity to fully jettison Roe. Indeed, several Alabaman politicians have stated this possibility as one of their motivations for passing their state’s ban.
Though there is no court higher than the Supreme Court, the Court usually follows past rulings, just as lower courts do. This constitutes the doctrine of stare decisis, that courts should generally adhere to the law as they have laid it out in past decisions. American legal tradition favors stare decisis because it gives stability to the law, allowing people to structure their lives around accepted understandings of what the law will be.
Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter jointly authored an extensive discussion of stare decisis in their plurality opinion in Casey back in 1992. In that discussion, the justices argued that even though not all the members of the Court may have agreed with Roe, they could not simply overturn the ruling for that reason alone. In her recent dissent in Knick v. Township of Scott, Pennsylvania, Justice Elena Kagan put it bluntly thus: “judges do not get to reverse a decision just because they never liked it.”
The current Court, however, may be moving towards a more lenient understanding of stare decisis and its dispensability, and one that boils down to just that view.
During the Court’s latest term, which ended in late June, the justices were explicitly asked to overturn precedent in four cases—an unusually high number. A majority of the Court obliged in two of those four.
Though the justices formed a variety of 5-4 coalitions in different cases throughout the year, both of these two cases were decided with the five Republican-appointed justices in the majority and the four Democrat-appointed justices dissenting. Kagan and Justice Stephen Breyer wrote dissents to the majority opinions that essentially doubled as warnings about their colleagues’ treatment of settled law.
In his dissent in Franchise Tax Board v. Hyatt, Breyer went so far as to invoke Casey by name. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” he wrote. Kagan soon answered him with her dissent in Knick. “Well, that didn’t take long,” she wrote. “Now one may wonder yet again.”
It almost appears that the Court is teeing itself up for a major ruling against established standards. But some observers have argued that the Supreme Court may not yet be willing to take the leap of dramatically reshaping abortion law.
“I think that if the Supreme Court took one of these cases now and overturned Roe v. Wade in the next year or two […] it would make the court look very political,” said B. Jessie Hill in an interview for The Politic. Hill is the Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law. As a volunteer attorney for the ACLU of Ohio, she also serves as counsel for the abortion clinic Preterm-Cleveland in its suit against Ohio’s S.B.23.
“It would be very obvious that Justice Kavanaugh replacing Justice Kennedy on the Court has changed the whole dynamic, and it would be clear that it was this change in personnel and not any sort of change in the law or legal principles that led to this overturning,” Hill said.
Chief Justice John Roberts, in particular, has endeavored to cast himself as highly concerned for the legitimacy of the Court and its status as a nonpartisan institution. And as stare decisis often compels justices to apply past decisions in a manner that contradicts their own ideological views, Roberts’s treatment of the doctrine is key to his perceived status as a nonpartisan arbiter of the law. Knowing this, Roberts acknowledged that “departing from the doctrine of stare decisis is an ‘exceptional action’ demanding ‘special justification,’” in his dissent in South Dakota v. Wayfair, Inc. issued just last year.
Yet Roberts has certainly joined in decisions prized by conservatives. He voted with the conservative majority in the two pivotal 5-4 cases Citizens United v. Federal Election Commission (2010) and District of Columbia v. Heller (2008). The Citizens United decision held that the First Amendment prohibits the government from limiting independent corporate spending on political communications, while Heller interpreted the Second Amendment as providing an individual right to own guns without service in a militia.
Some of Roberts’s own authored opinions have been just as consequential for Republicans. In late June, Roberts wrote the Court’s majority opinion in the partisan gerrymandering case Rucho v. Common Cause. In that case, the chief justice argued that partisan gerrymandering is a political question beyond the reach of federal courts and that states must be left to carry out redistricting as they see fit. The ruling is widely expected to help Republicans far more than Democrats.
Hill also noted that during Roberts’s tenure as chief justice, “there has been a greater preference […] for more narrow decisions, for not openly overruling but kind of gutting decisions without directly overruling them.”
An example of this would be Roberts’s opinion in the 2013 case Shelby County v. Holder, which ruled Section 4(b) of the Voting Rights Act of 1965 unconstitutional. Without the coverage formula contained in Section 4(b), the crucial preclearance requirement in Section 5 was rendered meaningless, and state and local governments with histories of racially-motivated voter suppression tactics were given back significant authority to craft their own voting procedures.
If the Court gives similar treatment to Roe, it may not need to explicitly overturn the decision in order to gut its holding. Doing so may give Roberts an avenue through which to claim that the justices are still respecting precedent. As a result, it may not so much be a question of whether a majority of the Court is willing to overturn or cut back on Roe, so much as it is really just a question of timing.
“Everybody’s sort of focused, and I think rightly focused right now, on these extreme abortion bans and what the fate of them is,” Hill said. But, she added, “I think that there’s still this more probable danger that the Court is just going to cut back on Roe v. Wade in various, really subtle ways.”
And as recent developments show, there are cases ranging all across the spectrum of abortion laws that could give the Court the chance to start doing just that.
Taken together, it is evident that a change to national abortion law is coming. The key question is how soon.
*This article refers to people who may become pregnant as “women” for shorthand, though we recognize that not all such people identify as women.