New strict abortion laws in states like Alabama and Georgia are setting the stage for a legal fight that could make its way to the Supreme Court, sparking fears that the court’s conservative majority could reverse Roe v. Wade.
Legal experts have previously cast doubt on the possibility of the Supreme Court revisiting the landmark ruling in Roe v. Wade anytime soon. But Justice Stephen Breyer appeared to raise the possibility this week in an opinion opposing conservative justices’ reversal of an unrelated 1979 ruling.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” Breyer wrote, in what many viewed to be a warning against a potential Roe v. Wade reversal.
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The court overturning the 1979 ruling, coupled with Breyer’s remarks, has intensified fears among abortion rights supporters who say a conservative-leaning Supreme Court could also overturn Roe v. Wade, which legalized abortion nationwide in 1973.
“This week the Supreme Court has shown a willingness to jettison precedent,” said Carrie Flaxman, Planned Parenthood’s deputy director of public policy litigation and law. “With Justice [Brett] Kavanaugh on the Supreme Court, there is a grave threat to abortion rights. That’s what these bills are targeted at. The sponsors of these bills are doing this, and states are doing this, because they hope that the court will overturn Roe.”
Advocacy groups are gearing up for lawsuits over the new state laws that offer up even more avenues for an abortion case to land before the justices.
Planned Parenthood vowed to sue if Alabama Gov. Kay Ivey (R) signed into law a measure passed Tuesday by state lawmakers banning abortion, with exemptions if the life of the mother is at serious risk, but none for cases of rape or incest.
Ivey signed the bill on Wednesday evening.
The American Civil Liberties Union filed a lawsuit Wednesday challenging a law signed by Ohio Gov. Mike DeWine (R) that bans abortions after a fetal heartbeat is detected, usually around six weeks of pregnancy.
Legal challenges are also pending in Mississippi and Kentucky, where Republican governors have recently signed fetal heartbeat abortion laws. And a lawsuit is also likely in Georgia, where Gov. Brian Kemp (R) signed a similar measure last week.
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Several of the laws appear to be designed to force the Supreme Court to revisit a key component of Roe v. Wade that said states can’t place certain restrictions on abortion.
Hans von Spakovsky, a legal fellow with the conservative Heritage Foundation, noted that Alabama’s abortion law is unlikely to hold up under the legal standard set by Roe. But he said the point of the new law is to force the Supreme Court to revisit abortion.
“I think the sponsors have made it clear that they are passing this law with a full expectation in Alabama that the lower courts will strike it down because they want this to get to the Supreme Court, because they’re hoping that it’ll be the opportunity for the Supreme Court to potentially overturn its prior precedents about this,” von Spakovsky said.
But the justices may be wary of taking up a controversial topic like abortion, particularly during an election year when it could give the appearance of putting the issue on the ballot. The Supreme Court’s current term is wrapping up, and the next one will begin in the fall, with major rulings usually reserved for June.
Mary Ziegler, a law professor at Florida State University who specializes in reproductive rights, said the 11th Circuit Court of Appeals would likely oversee challenges to the abortion laws in Georgia and Alabama.
She said that appeals court appears ready to punt the question to the Supreme Court, but has been “begrudgingly” upholding the precedent so far.
Even if the Supreme Court is presented with the case, the justices could decline to hear it.
“If the court doesn’t want to deal with this right now, they can easily avoid it,” Ziegler said. “If the lower courts are striking these laws down, they could just decide not to take a case.”
The Supreme Court is currently considering whether to hear arguments in a handful of abortion cases, including one challenging an Indiana abortion law signed by then-Gov. Mike Pence (R).
Some conservatives are banking on the addition of Kavanaugh as their chance to overturn Roe. His confirmation, as well as that of fellow Trump pick Justice Neil Gorsuch, helped establish a conservative majority on the bench.
But Kavanaugh’s vote on abortion rights — as well as that of Chief Justice John Roberts — isn’t necessarily locked in. Sen. Susan Collins (R-Maine) said during Kavanaugh’s nomination process that Kavanaugh told her that he wouldn’t overturn Roe, as he believed it was firmly entrenched in precedent and existing case law.
Both Kavanaugh and Roberts sided with the court’s liberal justices last year in declining to take up cases requesting that Planned Parenthood be defunded.
Court watchers have said Roberts’s vested interest in maintaining the integrity of the Supreme Court may contribute to him wanting to avoid a high-profile abortion case that could open up the justices to political attacks.
But Roberts and Kavanaugh joined in the opinion reversing the 1979 ruling in a case involving a years-long dispute over whether one state can be sued in another state’s courts.
Justice Clarence Thomas wrote in the opinion for the court’s conservative majority that the court’s prior ruling was an “erroneous precedent” and “contrary to our constitutional design.”
Breyer wrote a dissenting opinion, signed by the three other liberal justices, arguing that the decision signals the court’s conservative members could be willing to overturn other precedents.
Some quickly seized on the warning — a rare one to be issued so openly in a court opinion — to speculate that Roe could be on the chopping block.
“In spite of Justice Breyer’s cautionary dissent, 5 SCOTUS Justices have signaled their willingness to overturn decades-long precedent to conform to their conservative ideological agenda,” Sen. Mazie Hirono (D-Hawaii), a member of the Senate Judiciary Committee, tweeted Tuesday. “The stage is set to overturn Roe v. Wade, taking away a woman’s right to abortion.”
Ziegler said she viewed Breyer’s dissent as a message to fellow justices and to the general public.
“It’s a warning shot,” she said. “It’s directed, I think, not just at the public but probably at the potential swing votes on the court.”
Carol Sanger, a law professor at Columbia University, said that when the court was given the chance to overturn Roe in 1992, the justices chose to uphold the precedent while still acknowledging that they didn’t necessarily agree with the 1973 decision.
But she said that with the conservatives’ reversal this week, the justices were effectively changing the rules that the court follows in not overturning precedent without certain reasons to do so, like if the ruling is no longer effective.
Sanger said that in the 1992 ruling in favor of Roe, the justices cited the need for people to have a consistent set of rules in place as part of their decision to not overturn precedent.
“We have a population of zero to 45-year-olds who have organized their lives — maybe not intentionally — but they have to some extent lived knowing that one of the things they don’t have to worry about is having children that they decide are not right for them to have,” Sanger said.
Some experts, however, did not view Breyer’s dissent as being related to Roe.
“I just have to say that strikes me as very far-fetched,” Robert Nagel, a law professor at the University of Colorado.
He said the unrelated 1979 ruling about state sovereignty “does not implicate any of the larger sort of atmospheric or political and institutional considerations that the abortion controversy does,” and therefore doesn’t have the same kind of impact that the reversal of an abortion rights precedent would.
And while experts on both sides threw cold water on the prospect of an immediate reversal of Roe, they didn’t rule it out down the line, potentially during a less politically fraught climate.
Sanger, author of the book “About Abortion: Terminating Pregnancy in Twenty-First-Century America,” said that if President Trump wins reelection in 2020, he might have the opportunity to nominate more justices and further solidify the court’s conservative majority.
“Then I think there would be a much greater chance of a swift reversal once the case is there,” Sanger said.