The Roberts Court Could Take Up a Challenge to ‘Roe’ Sooner Than We Think

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Analysis Law and Policy

The Roberts Court Could Take Up a Challenge to ‘Roe’ Sooner Than We Think

Jessica Mason Pieklo

Unconstitutional abortion bans are sweeping the nation. It's only a matter of time before one ends up before the Supreme Court.

The American Civil Liberties Union (ACLU) on Wednesday filed a lawsuit challenging Ohio’s near-total abortion ban, which would make it a felony to provide abortion care to patients in the state starting at approximately six weeks of pregnancy.

The lawsuit, filed on behalf of abortion providers in the state, is the second legal challenge to an unconstitutional pre-viability abortion ban filed in Ohio this year. Meanwhile, in Kentucky, attorneys for the state filed Wednesday their notice of appeal of a decision blocking a law that would ban most later abortions there. In Alabama, Gov. Kay Ivey (R) signed into law a total abortion ban slated to take effect in 2020 and enacted specifically to make its way to the U.S. Supreme Court. Missouri lawmakers responded in turn by advancing a near-total abortion ban through the state senate overnight. That measure is expected to pass by the end of the week.

Let’s be very clear. All of these measures are patently unconstitutional. But with the federal courts packed with conservative ideologues intent on ending legal abortion, and with anti-choice lawmakers in the states happy to provide them legislation for a test case to try and do so, it’s becoming increasingly clear that it’s not a question of if the Roberts Court will be taking up a direct challenge to Roe v. Wade. It is a question of when.

Anti-abortion advocates have been working for years to try and get the federal courts to bite on upholding a pre-viability abortion ban. Doing so would undercut one of the central tenets of Roe: that states cannot ban abortion prior to viability. They had some success in 2007, when the Supreme Court upheld the federal “partial-birth abortion” ban in Gonzales v. Carhart on the grounds that while it did ban abortion before viability,  the restriction did not pose a substantial obstacle to a patient getting an abortion in the second trimester because dilation and extraction (D and E) abortions were still available. Those D and E procedures have, of course, now been banned in multiple states; one is now the subject of a pending petition before the Roberts Court.

Roe is gone. The chaos is just beginning.

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Since Gonzales, the federal courts, including the Roberts Court, have largely held the line. They’ve refused to allow states to enact and enforce the kinds of restrictions we’re seeing in Ohio and Georgia, let alone the total abortion ban recently passed in Alabama. ACLU attorneys make this point in court filings seeking to block Ohio’s ban, noting the Supreme Court has declined to hear at least five cases where lower courts had held pre-viability abortion bans unconstitutional.

If the rule of law holds, that should all be good news: Ohio’s ban should join the ranks of other failed six-week bans blocked by courts in Iowa, North Dakota, and Kentucky. And if the rule of law holds, the Roberts Court will in the coming weeks turn away the three pending petitions—two from Indiana and one from Alabama—seeking to enforce unconstitutional abortion restrictions. Each petition represents a challenge to some core tenet of reproductive autonomy, and the rule of law dictates they should be rejected.

But there are signs the rule of law is fraying. The Court has conferenced now 13—soon to be 14—times on whether to take the petition from Indiana seeking to enforce a state law banning abortions based on the race, sex, or disability of the fetus and mandating certain fetal burial requirements as well. As I’ve said before, there’s no good reason for the Court to take the case. Yet the justices haven’t turned the case away, either—and that is a concern.

So, too, is the fact that Republicans and President Donald Trump just successfully appointed their 40th anti-choice federal appellate court judge this week. The Republican takeover of the federal courts is nearly complete. When it is, all bets are off as to whether these kinds of bans will stand.

And that was the warning Justice Stephen Breyer issued Monday in his dissent in Franchise Tax Board of California v. Hyatt. The case has nothing to do with abortion rights, except for the fact that the conservative majority on the Court did away with 40 years of precedent simply because it could. If the Court was willing to wipe away precedent in a case about whether states are immune from lawsuits in other jurisdictions, what would the Court be willing to do with abortion rights precedent?

Justice Breyer is not an alarmist. The Court remains a pretty private institution, where disagreements between justices are kept mostly quiet. That’s precisely what makes Breyer’s warning so remarkable. It pulled back the robes of the Court to reveal how shaky the foundation of abortion rights jurisprudence really is.

It’s not just Alabama lawmakers who sense a mortal threat to Roe v. Wade. One of the Court’s most senior justices does as well.