The Effort to Take Abortion Back to The Supreme Court
The Progressive Teen Contributing Writer
In 2019, largely Republican legislatures in nine states passed laws to restrict abortion, all of which challenge the Supreme Court precedent set by Roe v. Wade in 1973. With so much attention focused on the current impeachment proceedings in Congress, the media and public have largely overlooked the status and importance of these bans. Although it has gone largely under the radar, “at the lower court level, judge after judge, citing Roe and other cases, has ruled against the laws.”
Roe v. Wade, decided on January 22, 1973 by the United States Supreme Court, held that the right to abortion is protected by the 14th Amendment. It also legalized abortion until a fetus is “viable” outside the womb (some time between 24–28 weeks of pregnancy). Roe v. Wade defines viability of a fetus as a fetus that is “capable of prolonged life outside the mother’s womb.”
The goal of the recent bills passed in 2019 by state legislatures is to bring the legality of abortion back to the Supreme Court. Americans will wait and see how the current conservative majority on the Court may re-interpret this highly polarizing constitutional issue.
Six states have passed, and one additional state has drafted, so called “fetal heartbeat bills,” which ban abortion once a fetal pulse can be detected. This can be as early as six weeks into a pregnancy, when many women do not even know that they are pregnant. The states that have passed these bills into law are Ohio, Missouri, Kentucky, Mississippi, Georgia and Louisiana. Additionally, in October Pennsylvania legislators introduced and drafted a heartbeat bill that has not been passed.
Five of the six heartbeat bills that have been enacted into law have been blocked by preliminary injunctions issued by federal judges at the lower court level. The sixth — Louisiana’s — has not been ruled upon because it contains a stipulation that it cannot be enforced until a federal appellate court rules on Mississippi’s similar law. In Mississippi, federal district court Judge Carlton W. Reeves declared that the law “threatens immediate harm to women’s rights” and “prevents a woman’s free choice, which is central to personal dignity and autonomy.” The preliminary injunctions blocking the enforcement of most of the heartbeat laws mean that the laws cannot be enforced until the lawsuits over their constitutionality are decided.
Utah and Arkansas have both passed laws which are slightly less restrictive than the heartbeat bills, while still in apparent conflict with Roe v. Wade. These states have enacted laws that restrict abortion after 18 weeks. According to the New York Times, the Arkansas restriction “seem[s] likely to be found unconstitutional based on the evidence provided so far.” Like the lower courts’ rulings on heartbeat laws in the other states, district courts in Utah and Arkansas have issued preliminary injunctions temporarily blocking the enforcement of the laws.
In 2019, the Alabama legislature passed the most restrictive abortion law to date. The Human Life Protection Act was described by Judge Myron H. Thompson of the United States District Court for the Middle District of Alabama as “the most far-reaching anti-abortion measure passed by state lawmakers this year.” Alabama’s law bans almost all abortions, even in cases of rape and incest, and threatens doctors who perform abortions with felony charges and up to 99 years in prison. This law, which would have taken effect on November 15, was temporarily blocked by a federal court in late October, which held that it violates Supreme Court precedent and is unconstitutional. In November, Ohio legislators drafted a similar bill essentially banning abortion. This bill has not yet become law.
In March 2020, the Supreme Court will hear its first abortion case since the appointment of two conservative justices shifted the balance of the Court to the right. In October 2019, the Supreme Court agreed to review a restrictive Louisiana abortion ban that was passed in 2014. This is significant because it will be the first opportunity for the new conservative majority on the Supreme Court to reconsider abortion rights.
While all of the abortion bans passed by state legislatures in 2019 have been temporarily blocked or are not yet in effect, the movement to restrict and even prohibit access to abortion is reaching the Supreme Court, which will have its first opportunity as a newly comprised Court to reconsider this hot topic in March 2020. 73% of Americans do not want to overturn Roe v. Wade, but many believe President Trump’s recent appointments of conservative justices Gorsuch and Kavanaugh will weaken or challenge this important ruling and even threaten to overturn it. If the Supreme Court restricts women’s access to abortion or takes away the right to choose, more than 25 million women, including many in minority groups, will lose access to abortion.
