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Supreme Court Abortion Decision to Fuel New Era of Legal Fights

Dec. 2, 2021, 5:23 PM

The Supreme Court could see more abortion cases if it erodes the line limiting when states can ban the procedure and state court dockets may swell if the justices overturn the constitutional right altogether.

Mississippi wants the high court to, at the very least, uphold its law banning abortions after 15 weeks of pregnancy. The court in Roe v. Wade, however, said states can only ban abortion once the fetus has reached viability and can survive outside the womb. If the court allows the Mississippi law to stand, legal scholars say it will be redefining the scope of that long-held protection and entice states to try and pass more restrictive 12-week, 8-week and 6-week bans.

“Whatever line they draw, states will see how far they can go,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “So whatever line the Supreme Court ultimately ends up with, it’s probably not going to be a clear cut line and therefore, it opens the door for all kinds of litigation.”

The court could apply the standard it created in Planned Parenthood v. Casey when it affirmed the court’s central ruling in Roe and say any restriction on abortion is legal unless it imposes an undue burden on women seeking to end their pregnancy.

If that happens, it’ll be up to the court to decide what counts as an undue burden, Corbin said.

A majority of justices on the Supreme Court during arguments Monday seemed likely to uphold Mississippi’s law. Chief Justice John Roberts questioned why 15 weeks isn’t an appropriate length of time to give women a chance to choose whether to have an abortion.

“If it really is an issue about choice, why is 15 weeks not enough time?” he asked.

Criminalizing Violators

There may even be five votes to eliminate the constitutional right to abortion entirely by overturning Roe and Casey.

Twenty-one states have laws or constitutional amendments already in place to ban abortion as quickly as possible if that happens, according to the Guttmacher Institute, a research and policy group that advocates for sexual and reproductive health and rights worldwide. Of those 21 states, 12 have trigger laws that immediately ban abortion if Roe is overturned.

“Any state that has banned abortion or will use this decision to potentially ban abortion is absolutely not going to stop there,” said Kelly Baden, senior vice president of strategic initiatives and services at the State Innovation Exchange (SiX), a national resource and strategy center that collaborates with state legislators on public policy.

“We know that opponents of abortion don’t support contraception,” she said.

Teresa Collett, director of the Prolife Center at the University of St. Thomas School of Law in Minnesota, said she’s not aware of any anti-abortion advocates who want to ban condoms or vaginal sponges.

“Now, to the extent that something that is characterized as contraception is abortifacient that’s a conversation to be had,” she said, referring to substances that induce an abortion.

Texas Right to Life, a non-profit advocacy and educational organization that opposes abortion, has argued in the past that Plan B, an over-the-counter drug, is being deceptively marketed as emergency contraception rather than an abortion pill.

Abortion rights advocates said they’re already worried about states banning the use of medications to end a pregnancy and potentially holding violators criminally liable if they obtain the medication out of state and take it in state.

Those types of penalties disproportionately affect people who are most marginalized, including low-income and Black women, said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project.

“We see it now now in situations where people end their pregnancy outside of the medical context and are prosecuted unfairly,” she said.

Crossing State Lines

Overturning Roe would push people to travel to states where abortion is legal to obtain the procedure. Baden said those states should prepare for an influx of patients.

Since people have a constitutional right to cross state lines, it’s unclear if states could criminally charge anyone who’s able to travel to obtain the procedure, said Maya Manian, a visiting professor at American University Washington College of Law.

“There may very well be state legislatures that try to do that,” she said. “They may very well try to criminalize that behavior or, as we’ve seen in Texas with the passing of SB 8, subject people to civil lawsuits for crossing state lines to access care. Whether or not they can constitutionally get away with that is another battle that may go to the courts.”

The Texas law, which bans abortions after six weeks of pregnancy, is in clear violation of the Supreme Court’s ruling in Roe, but the law was designed in a way to protect it from being overturned by a federal court. In SB 8, lawmakers left enforcement authority up to private citizens instead of state officials. It allows anyone to bring a civil suit against doctors who violate the law and anyone who aids and abets an abortion.

Providers and the Biden administration brought separate challenges that made it to the Supreme Court last month. A decision on whether to allow the cases to proceed and the law to remain in effect could come at any time.

If the Supreme Court in Mississippi’s case goes so far as to declare there isn’t a right to abortion under the U.S. Constitution, there wouldn’t be any constitutional claims so legal challenges over new restrictions would be left to states to sort out, Corbin said.

“Your level of protection will depend entirely on your state,” she said. “The anti-abortion people are endlessly creative in the kinds of restrictions they impose. Now those restrictions would be subject to state constitutions and state laws rather than federal constitutional protection.”

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com

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