Anti-choice leaders betting on Supreme Court to repeal abortion rights

Now that Brett Kavanaugh has been confirmed as a Supreme Court justice, observers on both sides of the abortion debate are anticipating the eventual reversal or gutting of the Roe v. Wade ruling and preparing accordingly. “We’re seeing states pass laws banning abortion at different points in pregnancy as part of an intentional strategy to get cases in the pipeline to go up to the Supreme Court, which could then use those cases to undermine or overturn Roe,” said Shaina Goodman, director of policy for reproductive health and rights at the National Partnership for Women & Families.

Pro-choice advocates are carefully monitoring lower-court cases that have the potential to reach the Supreme Court amid concerns that the stage has already been set. "The Supreme Court doesn’t have to overturn Roe to curtail access to abortion,” said Diana Kasdan, senior staff attorney for judicial strategy at the Center for Reproductive Rights. “The damage could be just as great with a decision that guts Roe. For instance, there are several cases in the pipeline that ban a safe, common method of abortion. While these unconstitutional laws are part of a long-term strategy by anti-choice proponents to get a case to the Supreme Court with the goal of overturning Roe v. Wade, the law is on our side and the wins in the lower courts demonstrate that. But if the Supreme Court — with a new fifth justice hostile to reproductive rights — takes one of these cases and upholds the law, it would give a green light to other states to pass similar bans.”

In case Roe is overturned, four states have already passed “trigger” laws that would automatically ban abortion, and nine states have pre-Roe bans that would go into effect. With that in mind, Republican legislatures are deliberately passing bills designed to be challenged in the courts with the hope that they will lead to a Supreme Court ruling that will overturn or undermine the Roe decision. "Everything is pointed towards the Supreme Court,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute. “The most extreme legislation is pointed that way. The approach to the courts has changed to emphasize fetal dignity and fetal life, and the opposition is having success with that strategy. The courts are playing even more of a crucial role.”

Even before the Senate voted to confirm Kavanaugh to the Supreme Court, anti-choice advocates already had much to celebrate this year. In the first half of 2018, 11 states adopted 22 new abortion restrictions. Louisiana and Mississippi both banned abortion at 15 weeks, but neither law has gone into effect as they are being challenged in court. And 29 states are “considered hostile or extremely hostile to abortion rights,” according to the Guttmacher Institute report Laws Affecting Reproductive Health and Rights: State Policy Trends at Midyear, 2018

Advocates are also troubled by some lower-court decisions this year that could have wide-ranging ramifications. In Comprehensive Health v. Hawley, the 8th U.S. Circuit Court of Appeals upheld a Missouri TRAP [Targeted Regulation of Abortion Providers] law that requires doctors who perform abortions to have admitting privileges at local hospitals, and requires abortion clinics to be licensed as ambulatory surgical centers. “The decision flies in the face of recent Supreme Court precedent set in Whole Woman’s Health v. Hellerstedt, where the Court ruled that essentially the same restrictions in Texas were unconstitutional,” said Goodman. “We know that these kinds of TRAP laws are significant impediments to access, and we should be moving toward overturning or repealing more such laws — and not in the opposite direction.”

And in November, three states have measures on their ballots that would restrict access to abortion. In Oregon, Measure 106 would amend the state constitution to prohibit spending public funds on abortions; this would affect both women on Medicaid and public employees. “271,000 women will be impacted if Measure 106 is passed, which disproportionately impacts low-income women,” said Grayson Dempsey, executive director of NARAL Pro-Choice Oregon. “Its passage would set a dangerous precedent in a state that just last year passed the Reproductive Health Equity Act,” which protects and expands coverage for reproductive health services.

Additionally, 11 states restrict coverage of abortion by private insurance plans, and 18 states require that women be given counseling before an abortion that may include information on at least one of the following: the unproven link between abortion and breast cancer (five states), the purported ability of a fetus to feel pain (13 states), or long-term mental health consequences for the woman (eight states). 

“Any of the state bills or court decisions that restrict access to safe and legal abortions will have a disproportionate impact on women of color,” said Linda Goler Blount, president and CEO of the Black Women’s Health Imperative, which has just released  Black Women Vote: The 2018 National Health Policy Agenda, a tool for the upcoming election. “African Americans have a higher rate of unintended pregnancy and a higher rate of abortion. However, there are underlying issues behind high abortion rates. High rates of abortion are related to poverty and lack of access to prevention services.”

However, 27 states and D.C. adopted new measures in the first half of this year that enhance reproductive health or protect reproductive rights. They include 25 provisions to expand contraceptive coverage, eight provisions to improve sex education, as well as eight provisions to improve access to reproductive health for incarcerated individuals. And the state of Washington will now require health insurance plans to cover abortion services if they cover prenatal care. In addition, “the pace of enactment of restrictive legislation is slowing down, in part because of the elections,” said Nash. “The number of proactive measures this year is a large number, and there is even more potential for next year. There is new attention in progressive states to pass proactive measures because of what’s happening at the federal level.”

But anti-choice proponents are constantly looking for new ways to curtail access. “One issue that could become a trend for the opposition is [abortion] complication reporting,” said Nash. “Data shows how safe abortion is, and the opposition has failed in the past to show that it’s dangerous, but we're seeing a new effort to try to show it has bad outcomes. In order to do this, the opposition is trying to broaden the definition of complications and include things like later-developing breast cancer or side effects from the anesthesia. This adds burdens to providers. Abortion complication reporting could have legs.”

Currently, 32 states have passed mandatory delay laws, according to Bad Medicine: How a Political Agenda Is Undermining Abortion Care and Access, a March 2018 report from the National Partnership for Women & Families. In most of these states, women must wait 24 hours before obtaining abortion care, but six states require a 72-hour waiting period. Already 20 percent of women seeking abortions have to travel 42 miles or more to reach the nearest abortion clinic. Mandatory delays disproportionately impact women with disabilities — 20 percent of women in the U.S. Requiring two or more trips to a clinic can be particularly difficult for women with disabilities, who are also more likely to be low income or jobless, partially due to discrimination. “Especially in the current political climate, there is a deeper willingness and effort to understand how historically marginalized communities — including women with disabilities, but also women of color, LGBTQ folks, immigrants — are disproportionately impacted by policies like abortion restrictions,” said Goodman. “There’s also a real recognition that the reproductive rights and disability rights movements have much in common, including our shared core values around the right to bodily autonomy and agency. The fights to protect the Affordable Care Act and to stop Judge Kavanaugh’s confirmation to the Supreme Court are evidence of these efforts to build coalition and power across movements and to raise awareness about how all of our issues are intertwined with one another.”

Advocates have made concerted efforts to reach out to health care providers, and they have become more involved and outspoken about the significance of comprehensive reproductive health care, which includes access to abortion care. With the midterms just weeks away, voters concerned about abortion remaining legal and widely available have a concrete advocacy tool. “People who care about access to abortion need to make their voices heard through everything from engaging with your representatives to talking with friends and family about your experiences with abortion reproductive health,” said Nash. “People still don't talk enough about their personal experiences."