Texas has grabbed the spotlight lately, but other meaningful challenges to states’ abortion laws are still winding their way through the federal courts.
The validity of state laws banning abortions after six weeks’ gestation and those sought because of a prenatal diagnosis of Down syndrome will be argued this week in the U.S. Courts of Appeal for the Eleventh and Eighth Circuits.
The arguments come just a few weeks before the U.S. Supreme Court will hear debate in Dobbs v. Jackson Women’s Health Org., a case testing Mississippi’s law banning abortions after 15 weeks’ gestation. The top court announced Monday that oral arguments will take place Dec. 1.
In addition to asking the top court to declare the law valid, the state has asked it to overrule Roe v. Wade, the seminal case holding that women have a right to end previability pregnancies, and Planned Parenthood of Southeast Pennsylvania v. Casey, which helped define the right.
“It all really does come down to the Supreme Court,” Elizabeth Watson, a staff attorney with the ACLU’s Reproductive Freedom Project, told Bloomberg Law. Anyone who’s never paid attention to the top court before should be watching it now, she said.
Still, Roe “is the law of the land,” and the appeals courts should follow it and hold the Missouri and Georgia provisions invalid, Watson said. She is the lead ACLU lawyer challenging Georgia’s six-week ban.
Dobbs presents a threat to abortion rights, Watson said. But that just makes the Eighth and Eleventh circuit cases “more important,” she said.
Reason Ban Reversal Sought
First up is the full Eighth Circuit, which on Tuesday will consider the validity of a Missouri law prohibiting doctors from performing abortions when a woman’s sole reason for wanting one is a prenatal diagnosis of Down syndrome.
This issue may come before the Supreme Court soon, with a petition for review pending in an Eighth Circuit case that struck down Arkansas’ reason ban.
Missouri’s similar law is valid because it’s rationally related to the state’s legitimate interest in protecting people with Down syndrome from “medicalized discrimination,” the state argued in its appellate brief.
But Missouri’s argument relies on unsupported, alternative legal standards that aren’t applicable here, the providers said in their response brief. Previability abortion bans are unconstitutional under Roe and Casey, they said.
Georgia’s “heartbeat” abortion law goes in front of the Eleventh Circuit on Sept. 24. A lower court barred its enforcement as contrary to long-settled precedent.
The law was part of a “wave” of state legislation aimed at barring previability abortions that providers succeeded in blocking, Watson said. There is no dispute that a six-week old fetus wouldn’t survive outside the womb.
The Supreme Court recently refused to block Texas’ heartbeat abortion law, but neither Watson nor Americans United for Life’s chief legal officer and general counsel, Steven H. Aden, thinks the decision will influence the Eleventh Circuit.
The Supreme Court declined to block enforcement of Texas’ S.B. 8 because there is no “state action” to block, because the law puts enforcement power into private hands, Aden said. Georgia’s law is to be enforced by the state.
The top court never said the Texas law is constitutional, so the Eleventh Circuit is still bound to apply the Roe/Casey standards to Georgia’s six-week law, Watson said.
Georgia officials argued there is no per se rule of unconstitutionality based on gestational age. Instead, the trial court should have balanced the state’s interests against the law’s alleged burdens, they said.
But the “Supreme Court has already balanced an individual’s liberty interest against governmental interests, and concluded that no state interest is strong enough to justify a pre-viability abortion ban,” abortion providers said in their response brief.
The Supreme Court’s unusual path to granting review in Dobbs near the end of its 2020 term after multiple re-listings, pushing it into the 2021 term for argument, suggests the court is likely to make big changes to its abortion jurisprudence, Aden said.
But that doesn’t mean the top court’s decision would change the outcome in the Eighth and Eleventh circuits if it stops short of reversing Roe, Aden said.
The question Dobbs is easy, Aden said. Is a state’s ban on on abortions after 15 weeks unconstitutional? The court can simply answer “no,” he said. Even if it announces new standards, lower courts will still have to decide if a particular law meets them, he said.
Additionally, a decision that a 15-week ban is valid doesn’t answer the question in a case involving a six-week ban, Watson said. In Georgia, for example, 87% of abortions in 2019 took place after six weeks, she said. The Georgia law also more broadly affects women seeking miscarriage care and women of color, she said.
Wait & See
The appeals courts can wait to issue their decisions until after the Supreme Court has spoken, Watson said. They needn’t do so, however, because precedent so strongly favors the providers, she said.
Still, the appeals courts might benefit from taking a wait-and-see approach, Aden said. Even if the top court doesn’t overrule Roe, it likely will adopt a “radical retrenchment” of the standards used to judge abortion restrictions, he said.
Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
American Civil Liberties Union Foundation, Arthur Benson II of Kansas City, Paul & Weiss, Planned Parenthood Federation of America, and American Civil Liberties Union of Missouri represented the providers in the Missouri case. The Missouri Attorney General’s Office represents the state.
American Civil Liberties Union Foundation, Center for Reproductive Rights, Planned Parenthood Federation of America, and Sean J. Young of Atlanta represent the providers in the Eleventh Circuit. Consovoy McCarthy PLLC and Georgia’s Attorney General’s Office represent the state.
The cases are Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 8th Cir. en banc, No. 19-2882, oral argument 9/21/21; SisterSong Women of Color Reprod. Justice Collective v. Governor, 11th Cir., No. 20-13024, oral argument 9/24/21.