With Fate of Roe V. Wade Unsure, Abortion Fight Shifts to New Territory

Jan. 22 marks the 47th anniversary of Roe v. Wade, the landmark case that legalized abortion nationwide. Those on both sides of the furious debate say this could be the year when everything changes.

In March, the Supreme Court will hear its first abortion case since Justice Brett Kavanaugh replaced Anthony Kennedy, who had been the swing vote on abortion cases. A decision is expected by summer.

The case, June Medical Services v. Gee, challenges a Louisiana law that requires doctors who perform abortions to have admitting privileges at a nearby hospital. It’s a reprise of a case decided in 2016, when a five-vote majority (including Kennedy’s) struck down a substantially similar Texas law in Whole Women’s Health v. Hellerstedt.

On Jan. 2, more than 200 Republican members of the House and Senate filed a brief in the Gee case urging the justices to use it to overturn Roe once and for all. “Forty-six years after Roe was decided, it remains a radically unsettled precedent,” the brief said. And the 1992 case that reiterated a curtailed right to abortion, Planned Parenthood of Southeastern Pennsylvania v. Casey, did not help, the members argued. “Casey clearly did not settle the abortion issue, and it is time for the Court to take it up again.”

The court is far more likely to rule narrowly in the case than to use it to overturn Roe and/or Casey because that’s what the Supreme Court tends to do.

Even if the court does not overturn Roe, it might do something that could hasten Roe’s demise: uphold the Louisiana law by ruling that abortion providers cannot sue on behalf of their patients, something the state of Louisiana is urging it to do. That would make it much more difficult to challenge state abortion restrictions because only women seeking abortions would be able to challenge those laws in court. Many pregnant women seeking abortions don’t want to go to the additional trouble of becoming part of a lawsuit that could take years.

“That would be a bigger deal” than finding some legal justification to uphold Louisiana’s law, said Mary Ziegler, a law professor at Florida State University who has written several books on abortion and abortion law.

It’s part and parcel of an anti-abortion strategy: make abortion more difficult to obtain even where it is technically legal. “A right is certainly important, but if you cannot access abortion care, that right is meaningless,” said Elisabeth Smith of the Center for Reproductive Rights, an abortion-rights law firm.

Since 2004, that center has periodically looked at what would happen to abortion laws in the states if the Supreme Court were to reverse its conclusion that abortion, at least in some cases, is a right guaranteed by the U.S. Constitution. In its original report, titled “What If Roe Fell,” and again in 2007 and 2017, the center assessed the likely legal status of abortion in the states, because in the absence of Roe, abortion’s legality would be determined by state lawmakers or state constitutions.

But in its 2019 version of “What If Roe Fell,” the group took a slightly different tack. This latest iteration looks at likely legality, but also at the relative availability of the procedure. The report concludes that if the Supreme Court eliminates federal protections for abortion, the procedure is likely to be immediately prohibited in 24 states, and remain legal and generally available in 21. The five other states and the District of Columbia have not established a right to abortion.

Smith said that, even with Roe still standing, some states, such as Mississippi and Missouri, are already abortion “deserts,” where the procedure is all but unavailable. But “the situation would be much worse if the federal right is limited or overturned,” she said. In fact, some states are “havens” that have made abortions easier to obtain. For now, “abortion is still legal. Every state has at least one abortion clinic,” Smith added.

This is far from the first time it appeared Roe was teetering on the brink. In 1992, after Justice Clarence Thomas replaced Thurgood Marshall, one of the original seven justices in the majority in Roe, the country braced for an overturn. It did not happen. In 2005, when abortion swing vote Justice Sandra Day O’Connor retired and was replaced by Justice Samuel Alito, the alarms were raised again. And again, it did not happen. Then in 2018, when O’Connor’s successor as the abortion swing vote, Kennedy, retired and was replaced by Kavanaugh, the bells rang once more.

The Louisiana case is the first chance for what would appear to be a clear five-vote anti-abortion majority to rule.

Ziegler, the Florida State law professor, warns that overturning Roe would not end the fight. “If this goes back to the states, it’s going to continue indefinitely,” she said. “The endpoint for people who oppose abortion is not just allowing states to decide.”

In other words, if you think the abortion issue is inflammatory now, just wait until Roe is gone.

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Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

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