by Birthright: A War Story | Updated on 9.25.18
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Donald Trump promised during his presidential campaign that he would appoint anti-abortion judges to the Supreme Court and that Roe v. Wade would be overturned “automatically.”
As many have pointed out, the Supreme Court doesn’t actually work that way. But Trump’s presidency may be shaping abortion law around the country anyway. Perhaps emboldened by his judicial appointments, legislators are introducing new abortion bans that directly challenge the tenets of Roe.
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One such law, a ban on abortions after 15 weeks, was signed by Mississippi Gov. Phil Bryant. Two more states moved to restrict abortion this week: a Kentucky law now on the governor’s desk would limit certain types of procedures for patients pregnant for more than 11 weeks, and a law just passed in Indiana would require doctors to report patients’ personal information to the state.
The law, which contains exceptions for medical emergencies or severe fetal abnormalities, but none for rape or incest, was immediately challenged in court by the Jackson Women’s Health Organization, the state’s last abortion clinic. On Tuesday, a judge granted a temporary restraining order blocking the law for the next 10 days. After that, the future is in doubt for anyone seeking an abortion after 15 weeks in the state of Mississippi.
Anti-abortion groups for years have been trying to close Jackson Women’s Health, also known as “the pink house” for the building’s bright paint. But the Mississippi law may also be part of a broader effort by anti-abortion advocates to bring a challenge to Roe v. Wadebefore what they hope will be a friendly Supreme Court. The ultimate goal is to open the door for nationwide restrictions on abortion rights. And with Trump in the White House, that goal might be more achievable than ever.
Mississippi’s ban was in effect for less than an hour before Jackson Women’s Health filed suit. “The law is blatantly unconstitutional,” said Hillary Schneller, a lawyer for the Center for Reproductive Rights who is representing the clinic.
The Supreme Court has said in Roe v. Wade and elsewhere that states cannot ban abortion before viability, when a fetus can survive outside the womb. Viability varies from pregnancy to pregnancy, but doctors today typically put it around 24 weeks. No fetus is viable at just 15 weeks, as the clinic’s lawsuit points out.
The ban could have had an impact almost immediately. According to court documents, one patient who was more than 15 weeks pregnant was scheduled for an abortion on Tuesday. The ban would have forced the clinic to turn her away.
On Tuesday afternoon, however, a judge granted a temporary restraining order blocking the ban from taking effect for 10 days. That will allow the clinic to perform the procedure on the patient who was scheduled for Tuesday, Schneller told Vox, as well as performing abortions for patients who have already scheduled abortion counseling appointments with the clinic. Mississippi law requires that patients receive counseling at least 24 hours before an abortion.
In granting the restraining order, US District Judge Carlton Reeves said the clinic was “substantially likely to succeed” in its claim that the law is unconstitutional. Schneller is optimistic about her clients’ chances. “The Supreme Court has said for over 40 years that a state cannot ban abortion prior to viability,” she told Vox.
“Every time in the recent past,” she added, “when the court has been asked to review court decisions striking down previability bans at six weeks, at 12 weeks, at 20 weeks, the court has refused to hear those challenges. In that way, again, they are saying they are not ready to revisit this very clear line.”
Previability bans have been struck down in Arizona, North Dakota, and Arkansas in recent years. But states keep trying. A bill banning abortion at 15 weeks was introduced in the Louisiana state legislature in February. On March 19, legislators in Ohio introduced a bill that would ban abortion outright in the state.
State legislators elsewhere have recently introduced other kinds of restrictions. On March 27, the Kentucky House of Representatives passed a bill banning dilation and evacuation, a procedure often used in second-trimester abortions, if a patient is more than about 11 weeks pregnant. The bill now goes to Gov. Matt Bevin, who has called himself “100 percent pro-life.” Meanwhile, Gov. Eric Holcomb of Indiana signed a law on March 25 that will require doctors who treat patients for complications of abortion to report to the state those patients’ age, race, and county of residence, among other information. Critics of the law say it will stigmatize abortion, which has relatively low complication rates compared with other standard medical procedures, according to the Associated Press.
Of course, abortion restrictions at the state level are nothing new. In 2012, Jackson Women’s Health filed suit against a Mississippi law requiring that doctors performing abortions have admitting privileges at a local hospital. That law was blocked in 2013.
But recently, anti-abortion groups and legislators may be focusing more attention on previability bans like Mississippi’s. One possible reason, said Heather Shumaker, senior counsel for reproductive rights and health at the National Women’s Law Center, is that the Supreme Court decision in Whole Woman’s Health v. Hellerstedt makes it harder for anti-abortion advocates to pursue a previous strategy of passing laws that restrict clinic operations, sometimes severely enough to drive them out of business.
In Whole Woman’s Health, the Court found that several such laws, including one requiring doctors to have admitting privileges, imposed an undue burden on patients seeking abortions and were unconstitutional.
Another reason for the new bans might be the Trump administration. Trump has already successfully nominated one Supreme Court justice widely seen as anti-abortion, Neil Gorsuch, and has promised to nominate more anti-abortion justices to fill any vacancies. He has also nominated — and the Senate has confirmed — more than a dozen federal district court and appeals court judges considered to be friendly to anti-abortion causes, as NPRreports.
“The anti-abortion movement is feeling emboldened to really kind of take the next step,” Shumaker said. That explains “this approach to push a clearly unconstitutional ban on abortion in states where they think that it could be successful.”
The ultimate goal, she said, is to get one of the bans to the Supreme Court, where a favorable decision would pave the way for previability bans around the country.
Some dispute whether the actions of the Trump administration had anything to do with Mississippi’s 15-week ban. The Mississippi Center for Public Policy, a think tank that helped draft the law, was inspired by other countries around the world that limit abortion after the first trimester, said Jameson Taylor, the group’s acting president.
“We’re proud that we can take the lead in making that the standard for the state of Mississippi, and hopefully that can become the standard for the rest of the country,” Taylor added.
He believes the Supreme Court has already abandoned the viability standard for judging state abortion restrictions, arguing that the Court’s 2007 decision in Gonzales v. Carhart, which upheld a law banning certain types of late-term abortions, also upheld the legality of imposing previability restrictions on the procedure.
“We’re confident that the Supreme Court will ultimately uphold this law,” he said.
It’s far from clear that Mississippi’s ban will get to that point. On Tuesday, Schneller said no additional court dates in the case had yet been set.
But regardless of what happens in Mississippi, more such cases are likely to follow, whether they come from Ohio, Louisiana, or elsewhere. And the more anti-abortion judges Trump adds to the federal bench, the better chance each case has of succeeding.
Written by Birthright: A War Story
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