Leah Litman is an assistant professor at the University of California at Irvine School of Law.
Roe v. Wade may still be the law of the land, but states such as Georgia and Alabama are moving aggressively to change that. The draconian bills both states recently passed reveal the legal strategy at work here: Even if the court of appeals and Supreme Court do not let these highly restrictive laws stand, the states are giving the court cover to dramatically cut back on reproductive rights without having to explicitly overturn Roe.
Roe , which was decided in 1973, established the principle that a woman has a right to an abortion. The court has refined that principle over time; a woman now has a right to an abortion before her fetus could viably survive outside the womb. While medical advances have affected when viability occurs in pregnancy, the Georgia and Alabama laws leapfrogged science to ban abortion well before that point.
Georgia prohibited abortions that occur after a doctor can detect embryonic cardiac activity, which typically occurs at about six weeks of pregnancy, earlier than many women are even aware that they are pregnant. Alabama elected to ban all abortions that occur once a woman knows she is pregnant, which is, of course, the only time abortions can take place. The only exception allows abortions where a woman’s life would be at serious risk without one.
The lawmakers who advanced and signed these bills have a two-pronged strategy. They are betting that the newly refashioned Supreme Court may be ready to overturn Roe, and that the song and dance about respecting precedent that Brett M. Kavanaugh and Neil M. Gorsuch did for Sen. Susan Collins (R-Maine) was merely a performance. State lawmakers can also look to the 40 appeals court judges that Senate Majority Leader Mitch McConnell (R-Ky.) and President Trump have confirmed in just 2 1/2 years, a breakneck pace compared with the 55 appeals court judges President Barack Obama was able to get confirmed over eight years.
These appeals court nominees have ruled against reproductive justice in ways that directly challenge the Supreme Court. Trump appointees to the U.S. Court of Appeals for the 5th Circuit voted to leave in place a decision upholding a Louisiana law that requires abortion providers to obtain admitting privileges at nearby hospitals. Louisiana’s law is virtually identical to a Texas law that the Supreme Court invalidated just three years ago. Some have otherwise made clear where they stand on abortion: U.S. Appeals Court Judge Jim Ho wrote in another decision that abortion is a “moral tragedy.”
Antiabortion lawmakers working on the state level can take these developments as evidence that the courts of appeal may uphold significant restrictions on abortion. Legislators are performing mental gymnastics of their own to make that happen: Some say the laws merely regulate the “time period” in which abortions may be performed. Given the changing composition of the federal courts, it would be naive to assume that the new judges would dismiss this convoluted logic, rather than embracing it as a chance to attack Roe v. Wade.
If a court of appeals upholds a law such as Georgia’s or Alabama’s, then the Supreme Court will feel pressure to take the case, even if the justices who would like to overturn Roe do not want to do so just yet. But they don’t have to uphold laws like Alabama’s or Georgia’s to hand abortion opponents a major win. In fact, a seeming loss for abortion opponents at the Supreme Court could function as a clever bait-and-switch.
Given the obsessive — and justified — focus on Roe itself, all the Supreme Court has to do is invalidate laws such as Alabama’s or Georgia’s (or let stand lower-court decisions invalidating those laws) to garner headlines that declare abortion rights saved. In the meantime, the court can uphold other state laws that also dramatically cut back on access to abortion but don’t clearly implicate the fetal viability standard.
The court can gut Roe without having to overturn it. For example, the court currently has on its docket at least two cases that would allow it to chip away at existing precedent and give states the green light to impede access to abortion or eliminate it entirely. One case involves the Louisiana law on admitting privileges, which could close at least two of the three clinics in the state. Another case involves an Indiana law that prohibits abortions on the basis of sex, race or disability. Alternatively, the court could invalidate one of the bans on abortions after six weeks, but uphold one of the bans on abortion after 15 weeks of pregnancy. Mississippi has enacted both such restrictions.
The developments in Alabama and Georgia are dispiriting. Even if all the two states accomplish with their obviously unlawful abortion bills is to create space for restrictions on abortion that are less obviously horrifying but still deeply insidious, that would still be an important win for these lawmakers — and a significant loss for reproductive justice.