WASHINGTON — Over the past few months, state after state has introduced or passed laws that would essentially ban abortion, counting on abortion rights groups to sue. This is not a coincidence, but a concerted effort to get the laws restricting abortion access before the Supreme Court. While these 6-week abortion bans may not ever take effect, anti-abortion advocates believe they can use them to ban abortion nationwide.
The anti-abortion movement sees this current court as the most friendly in decades, and they hope getting these laws in front of it will result in them overturning Roe v. Wade.
It’s an effort that has gone on for years, but has gained speed and force following the confirmation of Supreme Court Justice Brett Kavanaugh in October. The laws passed in recent months range from Mississippi, Ohio, and Georgia implementing bans on abortion after about 6 weeks, before many women even know they are pregnant, to Alabama passing a bill that would ban nearly all abortions in the state, with no exceptions for pregnancy in case of rape or incest, and make the procedure a felony that could land doctors (but not women) with jail time.
In reaction, politicians and advocates who support abortion rights have started ringing alarms. Actor Alyssa Milano called for a controversial “sex strike” on Twitter on Friday, asking straight women to stop having sex with male partners “until we get bodily autonomy back.” Sens. Kamala Harris and Cory Booker, who are both running for president, spoke out firmly against the laws. Cosmopolitan published a piece titled “5 Reasons It’s Time to Freak the F*ck Out About Abortion.”
While it’s gaining steam and attention, these laws are not new. Heartbeat legislation began as a model bill that was circulated by fringe anti-abortion groups. In 2013 it was taken up, passed, and signed in North Dakota, but was quickly declared unconstitutional and struck down in the courts. Since then, similar bills have been drafted and introduced both federally and in dozens of state legislatures. None have ever been successfully implemented (this year alone courts struck down 6-week bans in both Iowa and Kentucky) and at this point the legislators passing them and the advocates encouraging them don’t expect them to.
This puts abortion rights advocates that usually take up the lawsuits in a difficult position. The Center for Reproductive Rights, the ACLU, and Planned Parenthood, among others, want to stop the law from going into effect in each state and know that they can. Though with every lawsuit they file, they are playing into the hands of anti-abortion activists and politicians who will appeal the suit until it ends up at the Supreme Court.
“The Center for Reproductive Rights will continue litigating against unconstitutional abortion restrictions because abortion is a fundamental right afforded to all Americans, and we’re not going to sit idly by and allow unconstitutional abortion restrictions to go into law,” Elisabeth Smith, the chief counsel of the Center for Reproductive Rights State Policy and Advocacy, told BuzzFeed News.
“Picking and choosing who gets to access to ... reproductive health care is not a decision that any organization should be making,” she continued. “No one’s rights to access abortion should be geographically limited.”
The Supreme Court does not like to overturn major precedent, especially precedent that has been around for decades and has been reaffirmed repeatedly. But it does happen; in June 2018, the court overturned a 40-year-old decision pertaining to fees charged by unions to nonmembers. And earlier this week, the conservative majority overturned another 40-year-old decision, reversing a 1979 ruling that allowed individuals to sue a state in the courts of a different state. In his dissent Justice Stephen Breyer warned of what this decision might mean for future cases, citing a portion of Planned Parenthood v. Casey that explained why Roe should be upheld.
"To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay,” Breyer wrote.
However, abortion rights advocates still don’t believe that the Supreme Court will overturn Roe. While Trump’s Supreme Court appointees, Kavanaugh and Justice Neil Gorsuch, have expressed anti-abortion views in the past, they both repeatedly agreed in their hearings that Roe v. Wade was powerful, settled precedent that has been reaffirmed by the court repeatedly, and that they would respect precedent.
“We have their statements to go by, or we have conjecture to go by,” Smith said. She would rather go by their statements.
What is more likely than a total reversal, advocates have long said, is a slow degeneration. Different abortion lawsuits will reach the Supreme Court, and with each decision the court could decide that parts of the state laws restricting abortion access, or laws that are less restrictive than the 6-week bans, are in fact constitutional. This would slowly erode what lawyers and advocates refer to as the “core of Roe”: the idea that laws cannot place an “undue burden” on access to abortion.
Still, this is a gamble for either side. If, as Smith says, the Supreme Court hears the case and reaffirms Roe v. Wade yet again, that will make it even harder for anti-abortion advocates to get another similar lawsuit in front of the court, and for the court to overturn it.
But no matter what happens, it’s unlikely to happen for at least a year. Challenges to these heartbeat bills need to work their way through the lower courts before heading to the Supreme Court.