Everyone talks about Roe v. Wade but women’s health groups say Supreme Court could 'gut' abortion access without actually overturning it
Health leaders say Court could limit abortion access without overturning Roe.
The Senate is slated to vote on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court this week, and should Kavanugh be confirmed, the ideological makeup of the nation's highest court would shift instantly and dramatically.
With the midterm elections looming and control of Congress hanging in the balance as well, women’s health and reproductive rights lawyers are expressing concern about the effect a conservative court and a Republican-controlled Congress could have on women's access to abortion care.
They believe that -- should Kavanaugh be confirmed -- the anti-abortion movement would be poised to do what President Donald Trump promised two years ago during his campaign: to limit or even scrap American women’s access to abortion care altogether.
During his 2016 presidential campaign, then-candidate Donald Trump said the Supreme Court would “soon” overturn the landmark case, Roe v. Wade, which made abortion legal nationwide, because as president he planned to only appoint specifically “pro-life” justices willing retry and reevaluate those cases.
"With the nomination of Brett Kavanaugh, women [would] be facing the greatest threat to their constitutional right to abortion since Roe v. Wade was decided in 1973,” former Secretary of Health and Human Services Kathleen Sebelius told reporters on a call with Planned Parenthood political activists on Wednesday.
Should Republicans maintain control of both the House of Representatives and the Senate Congress could, in theory, pass a nationwide ban and wait for a lawsuit against the new law to move the case through the courts and challenge the Supreme Court to re-evaluate Roe v. Wade again.
Currently four states -- Mississippi, Louisiana, North Dakota and South Dakota -- have so-called “trigger laws” on the books, which would automatically ban and criminalize abortion for patients and providers if Roe v. Wade were to be overturned.
However, it is more likely that instead of scrapping Roe v. Wade all together, the Supreme Court could uphold new restrictions on abortion care access passed at the state level. Without formally overturning the Roe v. Wade decision, per se, states could still seriously limit how and when American women can receive an abortion.
“The threat to abortion access is very imminent and real, because there are dozens of cases regarding abortion and reproductive rights making their way through the lower courts that could get to the Supreme Court soon,” Diana Kasdan, senior staff attorney at the Center for Reproductive Rights, told ABC News over the phone.
“The court does not have to overturn Roe to fully undermine the right to abortion.”
Nationwide, there are at least 14 relevant cases currently pending before federal courts of appeals, making each one of those 14 cases potentially just one step away from being heard by the Supreme Court.
“Brett Kavanaugh’s nomination is really a culmination of a long-term strategy to get rid of Roe, whether that is formally overturning it or gutting it so completely that it is meaningless. The anti-abortion movement sees Brett Kavanaugh as their ability to do that,” Gretchen Borchelt, Vice President for Reproductive Rights and Health at the National Women's Law Center, told ABC News.
During his confirmation hearing before the U.S. Senate, Kavanaugh referred to Roe v. Wade as “settled” precedent of the Supreme Court and this “entitled to respect.”
“It has been reaffirmed many times over the past 45 years,” he continued, talking to senators. However, anti-abortion leaders argue that the issue is not settled culturally or politically in the country.
The National Women’s Law Center categorizes these major legal cases as well as other pending legislation into buckets: bans on when during a pregnancy a woman can get an abortion, restrictions on how a woman can receive an abortion medically (which includes proposed bans on certain procedures), and limitations and restrictions placed on abortion providers.
WHEN: Laws and legislation about when a woman can get an abortion
Several states have passed successive laws banning abortions earlier and earlier into a woman’s pregnancy. Last spring, Iowa legislators signed into law one of the nation's most restrictive abortions rules, prohibiting any abortions after a fetal heartbeat could be detected with an ultrasound, which is normally around six weeks into a pregnancy. A state court in Iowa temporarily halted the ban and the law is still being litigated.
Similarly, a federal court judge temporarily halted a Mississippi ban on abortions after 15 weeks of pregnancy. The case is pending before a federal district court and could be appealed to the Supreme Court after a ruling.
Louisiana followed Mississippi's lead and also passed a ban on abortions after 15 weeks. Louisiana’s law remains in limbo, waiting on the court decision regarding the Mississippi ban.
Last spring, a federal appellate court ruled that an abortion-related law passed in Indiana was unconstitutional. The law, among other provisions, prohibited women from seeking abortions at any time in a pregnancy, based on a medical diagnosis of a disability, such as Down syndrome.
The state of Indiana specifically asked for and was granted an extension until the end of this month to consider appealing the decision to the U.S. Supreme Court.
HOW: Laws and legislation about how a woman can get an abortion
The legislation passed in Indiana, which was ultimately struck down by lower courts, also required all aborted fetal or embryonic tissue be buried or cremated.
Medical providers successfully argued that those legal mandates regulations would be too burdensome for clinics and doctors. However, Indiana could still appeal that ruling, if necessary, all the way to the Supreme Court.
Similarly, Indiana’s sweeping law included rules about how long a woman would have to wait between doctor visits to receive an abortion, and if she would be required to have an ultrasound. All of those provisions are still working their way through the court system too.
Indiana’s Right to Life organization wrote in a statement to local papers after various parts of the Indiana law were struck down, saying that the organization hoped the state would appeal the last decision and petition the Supreme Court to weigh in.
“This is the civil rights battle of our time,” Sue Swayze Liebel, the organization’s vice president of public affairs, said in a statement. “Previous Supreme Court decisions that give states authority to regulate abortion give us great hope that the justices would side with Indiana's right to recognize civil rights protections for children in the womb.”
Texas and Louisiana legislators had also tried to enact laws requiring cremation or burial of embryonic or fetal tissue after an abortion. The Center for Reproductive Rights worked with a team of other activists and blocked the Texas law in a lower district court, but Texas has already decided to appeal that decision to the Fifth Circuit Court of Appeals.
States governments have long tried to ban specific abortion procedures as well. In August, a federal court struck down a restriction that legislators in the state of Alabama passed, which would have banned the most common type of surgical abortions.
Father Frank Pavone of the National Pro-Life Religious Council and Priests for Life organization applauded the president’s nomination of Kavanaugh to the bench. Kavanaugh, while on the Washington, D.C. circuit court bench, had previously sided with their organization in a lawsuit against the federal government.
“We knew his judicial philosophy already and it was one that we thought was correct.” Pavone told ABC News on the phone. Pavone argued that while the patchwork of abortion laws across the country can be difficult, but perhaps reflects the varying constituencies state to state. “The court has made itself the arbiter of every abortion law that the states pass. It should not have to be that way. We actually want a less heavy-handed approach from the court when it comes to abortion legislation.”
On the other hand, Pavone conceded that ultimately they believe the U.S. Supreme Court will have to weigh in again and re-evaluate the fundamental question of constitutional rights and woman’s right to abortion care.
Limitations and restrictions placed on providers and more
In 2016, health leaders won a major victory with the Supreme Court case referred to as Whole Woman's Health v. Hellerstedt.
The case struck down a Texas law which aimed to close abortion clinics and limit providers. The U.S. Supreme Court decided a state could not place such substantial obstacles in the path of women seeking an abortion and that undue burdens violates the Constitution.
"With the nomination of Brett Kavanaugh, women (would) be facing the greatest threat to their constitutional right to abortion since Roe v. Wade was decided in 1973."
Women’s reproductive healthcare leaders worry though that states and lower federal courts already push the boundaries of that decision from two years ago, with the hope of bringing some of the issues back to the top court, if the makeup of the court changes.
“I do think we face a moment now where courts that are looking for a way to uphold restrictions are going to push the line,” Kasdan added. She said that without the Supreme Court providing clear standards, it would be harder for groups like hers, the Center for Reproductive Rights, to go up against the onslaught of proposed state-level restrictions in recent years.
The Eighth Circuit Court of Appeals lately interpreted the Whole Woman's Health v. Hellerstedt standard very differently when weighing in on a case in Missouri, allowing several restrictions similar to those struck down in Texas to stand.
There are also a handful of states that have attempted to enact laws that cut off funding to Planned Parenthood clinics by prohibiting patients on Medicaid from using their benefits at those clinics for any services.
"Most people don’t think they are going to need an abortion, that is not something they expect, but if they were to find themselves in a situation, they think they could just go get one. They don’t realize how many restrictions have passed in the last few years,” Borchelt said.
“If Judge Kavanaugh become Justice Kavanaugh, [anti-abortion legislators] will be ready," she said. "It won’t be the day after, but I expect [that in] January 2019, there would be a slew of new kinds of abortion restrictions that state legislatures are introducing in the hope of getting that perfect case up to the court,” she continued.
Borchelt added, though, that an influx of Democrats or new state lawmakers could stem the tide of abortion access restrictions passed at the local level.
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