The Supreme Court’s 5-to-4 vote this month to block a restrictive Louisiana abortion law from taking effect provided some measure of consolation to reproductive rights advocates who feared the court’s new conservative majority would act immediately to restrict access to the procedure.
But that relief is likely to be short lived. In the pipeline are at least 20 lawsuits, in various stages of judicial review, that have the potential to be decided in ways that could significantly change the rights laid out in the 1973 Roe v. Wade ruling, and refined almost two decades later in Planned Parenthood v. Casey. The 1992 decision said a state may place restrictions on abortion as long as it does not create an “undue burden” on a woman’s right to abortion.
Most of the new cases involve challenges to state laws restricting access to the procedure. In Indiana, for example, abortion rights advocates sued to block a measure signed into law by then-Gov. Mike Pence (R) that required women to undergo an ultrasound, then wait 18 hours before having the procedure. The law also barred sex-selective abortions and abortions based on a prenatal diagnosis of fetal anomaly. In Alabama, the focus is on a law that would ban a common form of second-trimester abortion.
There is also a case awaiting a decision from the U.S. Court of Appeals for the District of Columbia Circuit involving a challenge to a Department of Health and Human Services policy preventing undocumented minors in federal custody from having abortions.
Both supporters and opponents of abortion rights describe this as the most fraught time for Roe v. Wade since the early 1990s, when the high court was filled with Republican appointees selected by presidents Ronald Reagan and George H.W. Bush, and instances of blockades, bombings and arson at clinics were on the rise. In 1991′s “Summer of Mercy” campaign in Wichita, thousands of antiabortion protesters gathered in the hometown of George Tiller, a physician who performed late-term abortions. Tiller was killed at his church 18 years later, in 2009, by an antiabortion extremist.
The parallels between then and now are not lost on historians.
“That was a moment people thought Roe v. Wade was going to end and abortion rights were going to disappear,” said David S. Cohen, a law professor at Drexel University whose research explores issues such as abortion at the intersection of constitutional law and gender. “Many people feel that way now.”
Clarke Forsythe, senior counsel at Americans United for Life, who wrote a book about the deliberations behind Roe v. Wade, said that “in 1992 and today, I think almost everybody expects the court to overturn the decision.”
The Supreme Court “has made a mess of abortion law, and it’s a mess only the court can fix,” he said.
The emotion surrounding abortion has been especially intense in recent weeks amid legislative efforts in Virginia and New York to loosen restrictions for abortions later in pregnancy. With concerns that Roe v. Wade’s reversal is imminent, which would leave the abortion issue to the states, many states are moving to either codify the right to abortion or pass laws that would make abortion illegal should the decision be overturned.
President Trump has weighed in several times with his own, often misleading, characterizations of the debate. During his State of the Union address earlier this month, he asserted that “lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments from birth.” New York’s law allows for abortions after 24 weeks if necessary for the life or health of the mother, or if the fetus is not viable.
At a campaign rally in Texas on Monday night, Trump accused Virginia Gov. Ralph Northam (D) of supporting infanticide based on comments Northam made in a radio interview in which he described what would happen if a third-trimester abortion resulted in a live birth.
“He would even allow a newborn baby to come out into the world and wrap the baby and make the baby comfortable, and then talk to the mother, and talk to the father, and then execute the baby,” Trump said.
Northam later said he was talking about babies with severe abnormalities or instances in which they were nonviable, adding that the baby would be delivered and resuscitated, if that’s what the parents wanted.
In 1992, many people were surprised when the Supreme Court reaffirmed abortion rights in the landmark Casey case, after Justices Anthony M. Kennedy, David Souter and Sandra Day O’Connor — who were all appointed by Republican presidents — defied expectations and supported a woman’s constitutional right to terminate a pregnancy.
Cohen said he does not expect surprises from the justices on the bench now. “It’s hard to see how [Roe v. Wade] survives with the current lineup,” he said. But, he added, it’s possible it may not be completely overturned but “whittled away.”
A June poll from the Kaiser Family Foundation shows that some 67 percent of Americans do not support the court overturning Roe v. Wade. The divide among Republicans is even greater; 53 percent said they would like to see the ruling overturned, while 43 percent said they did not want the ruling overturned.
Amanda Thayer, deputy national communications director for the abortion rights group NARAL, said this week that “it always has been the goal of the anti-choice movement to ban abortion outright, and that is really coming into acute focus now with a Supreme Court tipped in favor of the anti-choice agenda.”
“The threat to Roe v. Wade and the fundamental freedoms enshrined in Roe is coming through the courts,” Thayer said.
Below are some of the key abortion cases working their way through the courts. Cohen said it’s possible several could be accepted by the high court in the coming year. “If any one of those gets to the Supreme Court, it could be the basis of overturning Roe,” he said.
June Medical Services v. Gee, U.S. Court of Appeals for the 5th Circuit, No. 17-30397
This case involves the 2014 Louisiana law the high court stayed in early February. The measure requires physicians at abortion clinics to have admitting privileges at nearby hospitals and is nearly identical to a Texas law the Supreme Court struck down in 2016. Opponents have argued the law unduly burdens a woman’s access to abortion — and it has been tied up in the courts since it became law. After the high court stopped it from taking effect, Robert Barnes wrote in The Washington Post that “it seems likely the full court will now grant the case a full briefing and review.”
Planned Parenthood of Indiana & Kentucky v. Commissioner of the Indiana State Department of Health, U.S. Court of Appeals for the 7th Circuit, No. 17-3163
Planned Parenthood of Indiana & Kentucky v. Commissioner of the Indiana State Department of Health, U.S. Court of Appeals for the 7th Circuit, No. 17-1883
There are two abortion cases involving an Indiana measure signed into law three years ago. The first challenges a provision of the law that would prohibit abortions based on race, sex or disability, as well as a mandate that fetal remains be buried or cremated. U.S. District Judge Tanya Walton Pratt permanently enjoined those provisions, saying they violate a woman’s due process rights and conflict with court rulings that uphold a woman’s right to choose an abortion before a fetus could survive outside the womb — a decision upheld by a federal appeals court.
The second case takes issue with an 18-hour waiting period between a required ultrasound and an abortion. Pratt struck down that part of the law, saying the state had failed to prove the waiting period would impact a woman’s decision to go ahead with the procedure and noted it would place an undue burden on some women — a decision also upheld by a federal appeals court.
Indiana Attorney General Curtis Hill last year asked the U.S. Supreme Court to review the first case, and on Feb. 4, he appealed to the court to hear the ultrasound case.
Whole Woman’s Health Organization v. Thomas Dobbs, U.S. Court of Appeals for the 5th Circuit, No. 18-60868
The case involves a challenge to a Mississippi law that bans abortion after 15 weeks of pregnancy. A federal judge in November permanently blocked it, declaring it unconstitutional. According to Rewire News, “the decision reaffirms that viability is the constitutional standard to judge these types of abortion restrictions, and that at 15 weeks, a fetus is not viable and therefore the state cannot ban abortion care at that point. U.S. District Judge Carlton W. Reeves took lawmakers to task for the law in a strongly worded opinion that said the ban was obviously unconstitutional but that Mississippi lawmakers enacted it anyway.” The state of Mississippi has appealed.
Whole Woman’s Health, Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas v. Ken Paxton, U.S. Court of Appeals for the 5th Circuit, No. 17-51060
Abortion rights groups have been fighting a ban on a common abortion procedure known as dilation and evacuation, or D&E, typically used in second-trimester pregnancies. In 2017, U.S. District Judge Lee Yeakel stopped the ban from taking effect, saying it was an “undue burden” on women, according to the Austin Chronicle. Texas appealed, and the case was argued in November. A decision is pending.
Courts in Alabama, Arkansas and Kansas also have blocked similar laws from taking effect. On Thursday, according to the Cleveland.com, Planned Parenthood and other supporters of abortion rights sued to block a ban on D&E procedures in Ohio that was signed into law in December.