Inside the Case-by-Case Battle Over ‘Roe v. Wade’Rolling Stone — Alex Morris
In early February, the Supreme Court issued its first ruling on abortion rights since Brett Kavanaugh cried and fussed and angry-white-maled his way onto the bench, solidifying a conservative majority that many opined would quickly reverse 40 years of reproductive freedom. On its surface, the February ruling was benign: With a 5-4 vote, the court decided to halt — pending further review — a Louisiana anti-abortion law that would have forced two of the state’s three abortion clinics to close. In form and intent, the law is identical to one that SCOTUS struck down as unconstitutional in 2016. “This case should be an easy case for the Supreme Court because they’ve already decided it,” says Travis Tu, senior counsel at the Center for Reproductive Rights and the lead lawyer who is challenging the Louisiana law. “They don’t need to say anything more in this case other than that they meant it when they said it the first time.”
But it may not be that simple. For almost five decades, the GOP has waged a concerted war on Roe v. Wade, and in large swaths of the country, it has already won. “The threat to safe, legal abortion in America is at risk like never before,” says Planned Parenthood president Leana Wen. Since 2010, more than 400 state laws restricting abortion access have been passed. Eight states have only one abortion clinic left. And exploiting the wedge issue has become an imperative for Trump’s base, which not only has the conservative swing in the Supreme Court to celebrate, but also dozens of appeals-court appointments. Anti-abortion crusaders have lost no time in benefiting from this new conservative judiciary — the restrictive Louisiana law was upheld by the 5th Circuit Court of Appeals in January, which is freshly packed with five Trump appointees. “There is no doubt in my mind that there is a true race to the bottom,” says Andrea Miller, president of the National Institute for Reproductive Health. “Governors and state legislators in some very key states are now hoping for their day in the spotlight. They want to be the ones to bring the case that will ultimately fell Roe.”
Historically, the Supreme Court rarely overturns its own rulings — and usually only after decades have passed and political or social situations have dramatically shifted. “It’s very unlikely that the court is going to explicitly overrule Roe, because they know that’s politically unpopular,” says Jessica Arons, a senior counsel with the ACLU. One in four women will have an abortion in her lifetime, and about six out of 10 Americans believe abortion should be legal. To explicitly take away the right would not just go against public opinion, it would create the appearance that the decision was political rather than legal, and could therefore undermine the court’s authority. “And, ultimately, what is its authority?” asks Miller. “Its authority is that people operate as though what it says matters.”
But Roe is far from safe. “Everyone is concerned that Roe will be overturned with a big bang,” says Julie Rikelman, director of U.S. litigation for the Center for Reproductive Rights. “But even if the Supreme Court never utters the words ‘Roe is now overruled,’ it can do a huge amount of harm.” And this harm has plenty of precedent. In 1976, only three years after Roe was decided, it was drastically undercut when the Hyde Amendment blocked federal Medicaid dollars from going toward abortions — a limitation that SCOTUS upheld as constitutional in 1980. In a pivotal 1992 decision, Planned Parenthood v. Casey determined that limitations could be put on abortion as long as they didn’t create an “undue burden,” turning a blanket right into a circumstantial one. Anti-abortion groups have used this vague “undue burden” designation to chip away at abortion access, working hand in glove with legislators to attempt to regulate abortion clinics out of existence. “Since 1992, Roe has been a shell of its former self,” says Catherine Glenn Foster, president of the anti-abortion Americans United for Life. And now, “for the first time in decades, SCOTUS no longer has a majority that is emotionally committed to upholding Roe.”
Since Trump’s election, in particular, anti-abortion conservatives have pivoted from mainly pushing for targeted regulations on providers (otherwise known as TRAP laws) to more unambiguous attacks on reproductive choice: banning certain procedures, limiting the reasons a woman can terminate a pregnancy, or shortening the time period in which she can legally do so. “It’s spaghetti on the wall, it really is,” says Megan Donovan, a senior policy manager of the Guttmacher Institute. And in some states, it’s gotten increasingly brazen. Mississippi, for instance, is in the process of passing a fetal-heartbeat law that bans abortions as early as six weeks, despite the fact that a U.S. district court already struck down a law in the same state banning it at 15 weeks.
These tactics may seem like a waste of time and taxpayer dollars — dumping funds into pointless litigation — but they have had a purpose historically. Even if the laws are ultimately overturned, the amount of time they are in effect can have an impact: Once closed, abortion clinics may not open back up again. “Even if Roe is still the law of the land, whether or not pregnant people can actually access abortion is another question entirely,” says Cecile Richards, former president of Planned Parenthood. And now passing such flagrantly unconstitutional laws has a more pointed purpose: to see what the new court will do with them.
The Louisiana law under review in June Medical Services v. Gee could be the first to test that out. For one, it’s already in line to be heard — though it’s only one of at least two dozen anti-abortion statutes currently making their way through the judicial system and gunning for the Supreme Court. It also presents an interesting opportunity for anti-abortion advocates: Unlike a fetal-heartbeat ban, for instance, the Louisiana law doesn’t challenge Roe overtly. Rather it challenges a decision relating to Roe — which is the most likely terrain on which the abortion battle will be fought.
The law would require the state’s abortion doctors to obtain admitting privileges at a local hospital, which the Supreme Court specifically ruled against in 2016’s Whole Woman’s Health v. Hellerstedt, deeming it to be not just onerous for clinics (by the time the court took the case, Texas had gone from more than 40 clinics to just 19) but medically unnecessary (ERs are legally required to admit anyone who comes through their doors, and in a number of states doctors have been denied admitting privileges because they perform abortions). The case therefore presents a perfect litmus test to see whether, when it comes to cases related to Roe, this new Supreme Court will uphold its own precedent.
So far, it’s difficult to read the tea leaves. Justices Kavanaugh, Neil Gorsuch, Clarence Thomas and Samuel Alito voted against halting the law, and Kavanaugh even wrote a four-page dissent, a somewhat unusual step for a court action such as this — a stay as opposed to a ruling. Also of note is the disingenuous argument he makes: Allow the law to go into effect for 45 days, and let’s see if the doctors can get admitting privileges, let’s see if the clinics close, he argues, despite ample evidence of what the outcomes will be. “The doctors in Louisiana have tried to get admitting privileges for four and a half years without success,” says Tu. “Forty-five days is not going to change anything.”
But Kavanaugh’s dissent also acknowledges that there is clear legal precedent in this case. “The problem with a conservative court like this one overturning too many precedents too often is that the court loses all claim to really being conservative,” says David A. Kaplan, author of The Most Dangerous Branch. “Respect for precedent is one of the calling cards of a real conservative.” But the court could effectively overturn its precedent simply by doing nothing at all. The Louisiana law is halted pending the Supreme Court’s decision on whether to hear the case. If the justices opt not to — and let the 5th Circuit’s ruling stand — the law goes back into effect and Louisiana loses all but one abortion doctor, sending a message to other states that the court will no longer stand in the way of their restrictive legislation. “If the Supreme Court does not take this case, I think it’s open season against the right to abortion in states throughout the country,” Tu says. “Anti-abortion forces will see that not just as a road map but as an invitation to enact all manner of abortion restrictions and try to do an end run around women’s health.” Roe would effectively be overturned without the Supreme Court having lifted a finger.
Setting that possibility aside, Roe is also vulnerable in cases where the precedent is less clear, where SCOTUS could continue to narrow its conception of “undue burden.” “It’ll be death by a thousand tiny cuts,” predicts Kaplan of Roe’s demise. Arons of the ACLU agrees: “I think we can expect this court to gut Roe, to pretend that it’s upholding Roe but actually reduce the standard of scrutiny that gets applied to these state restrictions to the point where they may as well have outlawed it.”
Which means that we may be heading toward what Donovan calls “a very exacerbated patchwork situation” in our reproductive laws, returning to a pre-Roe landscape in which the Supreme Court effectively recuses itself, and the legality of abortion is left up to the states. In anticipation, the battle lines are clearly being drawn; the carving up of abortion deserts and oases is happening across the country.
The Guttmacher Institute classifies 21 U.S. states as “hostile” or “very hostile” to abortion rights, while only four are “supportive” or “very supportive.” Five states currently have so-called trigger laws, which would immediately ban abortion if Roe v. Wade fell. Arkansas’ version has no exceptions for rape or incest and would make performing an abortion a felony, punishable by 10 years in prison.
On the other end of the spectrum, liberal legislatures are now working to shore up citizens’ access to abortion. Last year, the number of progressive reproductive-health policies overtook the number of -restrictive ones, a first since anyone’s been keeping score. According to the National Institute for Reproductive Health, 422 bills introduced in 44 states and D.C. were aimed at protecting reproductive rights in 2018, 100 of which were fully enacted into law (in 2014, only 19 such bills were enacted). “Public support for Roe v. Wade has never been higher than it is right now,” says Richards. “If you are one of the majority of Americans who care about access to safe and legal abortion, now is the time to make your voice heard.”