by Birthright: A War Story | Updated on 9.25.18
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State lawmakers and anti-abortion groups across the U.S. have ramped up their push for restrictions on abortion, part of a strategy to get the Supreme Court to re-examine — and overturn — Roe v. Wade, the landmark decision that legalized abortion.
Emboldened by the Trump administration and possible changes to the makeup of the Supreme Court, more states are looking at laws that would ban abortion at a certain point in pregnancy.
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Mississippi Gov. Phil Bryant (R) signed a bill earlier this month banning abortions after 15 weeks. If it survives legal challenge, it would be the earliest ban in the country.
And it's not just Mississippi — Iowa, Ohio, Kentucky and other states have proposed bans, too.
"We're entering a period where states are trying to effectively one-up each other," said Elizabeth Nash, the senior state issues manager at the Guttmacher Institute, a pro-abortion rights research group.
"They're jockeying for position as to which would be the state that would have their name on that case."
The Iowa Senate recently approved a ban on abortion after a fetal heartbeat is detected, usually around six weeks of pregnancy, while bills in Ohio would ban all abortions. Kentucky's bill would ban a common abortion procedure after 11 weeks. Many other states are considering bans on abortions after 20 weeks.
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While all will likely face legal challenges if passed, the hope for anti-abortion advocates is that one of the bills will end up at the Supreme Court with their state's name on it.
“I have been consistent in saying Iowa should lead the way in overturning Roe v. Wade,” said Bob Vander Plaats, president and CEO of The Family Leader, an influential conservative, Christian advocacy group based in Iowa.
“It’s a great opportunity for Iowa to lead on the sanctity of life.”
While the Supreme Court has declined to review many abortion cases in recent years, including fetal heartbeat bills blocked by lower courts in North Dakota and Arkansas and a 20-week abortion ban declared unconstitutional in Arizona, anti-abortion groups think that could change if Trump appoints at least one more Supreme Court justice.
“We are searching for one vacancy, whether that be a retirement … or through a circumstance that we’re not aware of yet,” Vander Plaats said.
The Trump presidency has spurred another wave of abortion laws, with 19 states adopting 63 restrictions in 2017, the highest number since 2013, according to the Guttmacher Institute.
That trend could continue in 2018 — state legislatures have proposed 15 bills that would ban abortions after 20 weeks, and 11 bills that would ban abortions if the sole reason is a genetic anomaly like Down syndrome.
State legislatures have so far introduced 27 bills banning most or all abortions.
“Under the current administration, we have a new Supreme Court justice who is anti-abortion, and we also have a lot of Trump nominees to the federal courts,” said Heather Shumaker, senior counsel at the National Women’s Law Center, which supports abortion rights.
“So state legislatures are feeling more emboldened to push things that are obviously unconstitutional.”
Still, a divide exists among anti-abortion advocates about the best strategy to challenge Roe v. Wade.
“There’s a lot of disagreement about whether we should go straight to abolition of abortion completely, or if we should take that incremental approach and let the court build up the precedent by upholding these more incremental laws,” said Deanna Wallace, director of legal communications for Americans United for Life (AUL), an anti-abortion litigation group.
“We take a very measured, incremental approach. We think it’s important to build up a solid foundation of laws so when it’s overturned, it’s overturned for good.”
For example, AUL drafted model legislation this year that requires medical providers report any complications from abortions to the state. So far, 38 states have introduced similar bills. It has also pushed for 20-week abortion bans, which many states have passed.
Still, the goal among anti-abortion advocates is the same: getting the Supreme Court to reexamine Roe v. Wade.
“A lot of the legal standard for abortion in this country has been set by the U.S. Supreme Court. The way to try to change that legal standard would be to have another case move up the courts, where the Supreme Court would be forced to revisit Roe v. Wade in some way,” said Nash, of the Guttmacher Institute.
Abortion rights lawyers still think overturning Roe v. Wade is unlikely, even if Trump does nominate another conservative justice and the Supreme Court agrees to review a case.
“I think even justices that are anti-abortion understand the importance of court precedent and that you can’t ban abortion prior to viability,” Shumaker said.
But as more and more states enact 20-week abortion bans, some think the Supreme Court might eventually have to address it.
Eighteen states ban abortions after 20 weeks, but earlier bans have been struck down in lower courts. Congress also has come close to passing a nationwide 20-week ban.
“I think the next time the Supreme Court looks at abortion, it will be dealing with 20-week abortions,” AUL’s Wallace said.
“Within the next year or two for sure.”
Written by Birthright: A War Story
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