Could a ‘heartbeat bill’ take down Roe v. Wade? – Washington Examiner
A handful of red states are placing bets on abortion bans in the hopes of having the Supreme Court reconsider Roe v. Wade, the landmark decision that legalized abortion nationwide for up to 24 weeks into a pregnancy.
States are quickly passing laws banning abortion when a doctor can detect a fetal heartbeat, at about six weeks into a pregnancy and before many women know they’re pregnant. Such “heartbeat bills” have passed this year in Georgia, Kentucky, Mississippi, and Ohio, and in previous years in Iowa and North Dakota.
Because the laws violate Roe‘s 24-week standard, they’ve been quickly struck down or put on hold everywhere they have been challenged, and abortion remains legal across the U.S. Still, advocates who push them hope they may eventually offer the opportunity to reverse Roe given that the Supreme Court’s makeup has changed with President Trump’s appointments of Brett Kavanaugh and Neil Gorsuch. If that were to happen, the decision over the legalization of abortion would fall to the states.
“Certainly the intent of these laws is to ask the court to revisit whether there is any constitutional right for abortion whatsoever,” said Jennifer Dalven, director the Reproductive Freedom Project at the ACLU, which has brought challenges against the bans. “Whether the Supreme Court decides to take up one of these, we’ll wait and see.”
Having a six-week ban appealed to the Supreme Court would take years, and is unlikely. Still, it would be possible if lower court decisions are appealed or if circuit judges were to rule differently from one another. This would be unexpected: No federal court has upheld bans on abortion that are earlier in a pregnancy, and judges are likely to strike down six-week bans because lower court judges are compelled to apply Supreme Court precedence in their rulings.
“I think that scenario is the longest of longshots,” Clarke Forsythe, senior counsel at Americans United for Life, said of lower courts upholding a six-week ban on abortion.
But other anti-abortion advocates and lawmakers who back the six-week bans believe that it’s time for the Supreme Court to reexamine its 1973 ruling that abortion is allowed nationwide up until the point at which a baby would be able to be born early and still survive outside the womb, which is generally understood to be at about 24 weeks into a pregnancy. Opponents of this standard think that the question of viability has changed thanks to medical technology that helps premature babies survive and that allows pregnant women to see fetal development.
“The clear vitality of life that is developing is becoming more and more apparent to our eyes and our ears, and that for many people is what is inspiring these bills,” said Andrea Picciotti-Bayer, an attorney for the Catholic Association.
But Forsythe thinks it’s unlikely the bans would reach the Supreme Court, noting that the justices had already declined to hear cases on other abortion bans in recent years, causing them to be struck down. The judge who is hearing the Mississippi ban on May 21 already struck down a 15-week ban in the state, signaling he’s likely to rule similarly on an even more restrictive ban. Still, the Supreme Court has a different makeup than it used to.
“It may be that anti-choice politicians hope they get a different result this time,” said Hillary Schneller, staff attorney at the Center for Reproductive Rights. “But the Supreme Court has always come out the same way on this very core issue as to whether a person has the right to make this very core decision.”
How abortion cases are challenged, whether in federal or state court, will also factor into the significance of a ruling. The Supreme Court could narrowly uphold state laws without touching on Roe, or it could rule in a way that opens the door to states chipping away at abortion rights.
Both sides know the Supreme Court doesn’t have to hear an abortion ban to overturn Roe. Other bills that limit abortion access can have a similar effect. For the Supreme Court, there are a multitude of potential outcomes in between outright upholding or fully overturning Roe that would allow for more restrictions on abortion.
Schneller called such a strategy “death by a thousand cuts to eliminate abortion in a more stealth way” and a “more subtle but very dangerous way of eliminating access to abortion without actually having to overturn Roe.”
The Supreme Court is already considering abortion challenges, including over a law in Indiana that would ban abortion on the basis of race, sex, or disability status.
In another case, the Center for Reproductive Rights has asked the Supreme Court to strike down a Louisiana law that obligates doctors have admitting privileges to local hospitals, which is a similar law to one the high court ruled unconstitutional in Texas almost three years ago. If allowed to proceed, the law would reduce the number of doctors who provide abortions in the state to just one.
“The right to abortion on paper doesn’t mean anything in practice unless you’re able to have a clinic in your state where you’re able to access abortion without an undue burden,” Schneller said.
Many national advocacy groups who seek to end abortion favor the more gradual approach, including the Susan B. Anthony List, which is influential with the Trump administration. Americans United For Life backs abortion laws that ban the procedure at 20 weeks as well as laws that require all women to undergo an ultrasound before having an abortion.
“Any of those could be the vehicle for re-examining Roe, although the court is not going to do so in the short term,” Forsythe said.