Anti-abortion bills abound; their fate in court is unknown

At an intense pace, lawmakers in Republican-governed states are considering an array of tough anti-abortion restrictions they hope might reach the Supreme Court and win approval from its conservative majority, overturning the 1973 Roe v. Wade decision that established a nationwide right to abortion.

A sweeping ban already has been signed into law in South Carolina, only to be swiftly blocked by a lawsuit from abortion-rights groups. Arkansas’ governor signed another ban this past week.

A batch of other near-total bans also were blocked in the courts after their passage in 2019.

It’s not clear if or when the Supreme Court might consider any of them, or take some other path. The court could weaken Roe with approval of less drastic restrictions or even leave the core of the 1973 ruling in place.

"Anyone who tells you what the Supreme Court is going to do is pulling your leg," said Jennifer Popik, federal legislative director for the National Right to Life Committee.

What’s clear is that the federal judiciary changed dramatically during Donald Trump’s presidency. In addition to three appointments to the Supreme Court, giving it a 6-3 conservative majority, Trump made scores of appointments to federal district and appellate courts. That raises the possibility that previously rejected anti-abortion measures might now be upheld.

State Rep. John McCravy, a Republican who sponsored the South Carolina ban, said Roe v. Wade was on his mind in crafting the bill.

"This is a decision that the Supreme Court is going to need to make," he said. "Certainly it’s encouraging to see the court changing and to see hope at the end of the tunnel."

The South Carolina law, like several passed by other states in 2019, would ban most abortions after a fetal heartbeat is detected, typically about six weeks after conception.

In Arkansas, the bill Gov. Asa Hutchinson signed Tuesday goes further, banning all abortions except when performed to save the life of the mother. It has no exceptions for rape or incest.

Hutchinson had favored including those exemptions but signed the bill anyway as an explicit challenge to Roe.

"It is the intent of the legislation to set the stage for the Supreme Court overturning current case law," he said.

The American Civil Liberties Union of Arkansas plans to challenge the ban in court.

Arkansas and South Carolina are among more than 15 states where lawmakers have proposed near-total abortion bans this year, according to the Guttmacher Institute, which advocates for abortion access.

Guttmacher’s director for state issues, Elizabeth Nash, said the total number of anti-abortion measures this year is nearly 400 — on par with other recent years. What’s different, she said, is the fast pace at which some bills are moving.

"State legislatures are putting abortion restrictions and bans on the front burner, at the top of their agenda," Nash said.

In addition to sweeping bans, states are considering an array of other restrictions. They include limiting access to medication abortions, banning abortion after 20 weeks of pregnancy, banning it in cases of fetal anomalies such as Down syndrome, and outlawing a common second trimester abortion procedure known as dilation and evacuation.

Some anti-abortion activists suggest the Supreme Court may take an incremental approach, upholding measures that fall short of a near-total ban but still would weaken Roe. That ruling held that abortions should be legal up to the point of a fetus’ viability — roughly 24 weeks.

"It’s been our job as activists to keep passing these state bills and challenging the status of Roe," said Mallory Quigley, vice president of communications at Susan B. Anthony List, a national anti-abortion group.

"There’s always been a concerted effort to give the court a menu of different options they can choose from," she said.

Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project, suggests the Supreme Court, under Chief Justice John Roberts, may prefer to weaken Roe by curtailing abortion access rather than take up a case that could lead to Roe’s outright reversal.

"Even if Roe stays on the books, it will be harder and harder for people in the South and Midwest and Great Plains to get abortions," Dalven said, referring to regions where Republicans generally dominate state politics. "Roberts can allow the wall to get higher and higher and yet not provoke that headline that the Supreme Court overturns Roe."

One pending case could provide a strong hint about the high court’s intentions. It may announce soon whether it will consider Mississippi’s bid to enforce a 15-week abortion ban. If accepted, the case would provide an opportunity for the reconfigured court to dramatically change the way Roe is applied.

Nancy Northup, president of the Center for Reproductive Rights, said it would be "shocking" if the Supreme Court agreed to consider the Mississippi case.

"The only reason would be to do fundamental damage to Roe," she said. "We’ve never had a court like this, with so many justices clearly opposed to the constitutional protection of abortion rights."

Northup also is wary of another possible scenario, in which one of the increasingly conservative federal appellate courts upholds a state restriction that undercuts Roe. She said the Supreme Court could decline to hear appeals, letting the restriction take effect in the states belonging to that judicial circuit. That could embolden abortion foes to seek similar outcomes in other regions.

Michael New, an abortion opponent who teaches social research at Catholic University of America, predicts the Supreme Court will move slowly.

"Over time, I think states will be allowed to do more to protect the preborn," he said. "But court decisions will likely only allow for gradual changes in public policy."

At the state level, recent elections have made a difference in abortion politics.

Montana’s first Republican governor in 16 years, Greg Gianforte, has promised to sign at least two of four measures restricting abortion that have already passed the Legislature. Three — including one to ban all abortions after 20 weeks of gestation — were vetoed by Gianforte’s Democratic predecessor.

In New Hampshire, where Republicans re-gained majorities in the House and Senate in November, the House has passed two abortion-related bills, including one allowing doctors to be prosecuted for withholding medical care for any baby born alive.

Meanwhile, some states where Democrats have taken control are acting to protect or expand abortion access. Virginia’s General Assembly is repealing a ban on abortion coverage in some health insurance plans. New Mexico’s Democratic governor, Michelle Lujan Grisham, signed legislation repealing an abortion ban enacted before the 1973 Roe ruling.

"With uncertainty at the federal level, New Mexico needs to be clear about women’s rights, women’s health care, women’s reproductive choices, abortion and abortion care," Lujan Grisham said.