For decades, the debate over abortion rights has centered on a single court decision, Roe v. Wade, and the possibility of its overturn. Overturning Roe has become the holy grail of the antichoice movement, and many states have “trigger laws” on the books that would ban abortion immediately should the Supreme Court overturn Roe. Unfortunately for antichoicers, the justices resist overturning precedent; more importantly, Justice Anthony Kennedy, the likely swing vote on any abortion case before the court, upheld Roe on the basis of precedent in 1992. However, the recent surge in state legislation against abortion demonstrates that antichoice activists have figured out a new strategy: eliminating legal abortion without directly overturning Roe.
The Supreme Court granting states the power to ban abortion with Roe still standing seemed outlandish even just a few years ago, but the appointment of John Roberts as chief justice shifted the equation. Roberts specializes in decisions that reverse the spirit of precedent while leaving intact the letter of it, like when he squashed large chunks of Brown v. the Board of Education while claiming to uphold it. To make it legal to ban abortion in the states, all the Court needs is a law that eliminates legal abortion while dodging the logic of Roe v. Wade.
Many state legislatures appear to be doing just that, writing legislation which Nancy Northup, the president of the Center for Reproductive Rights, describes as “part of an ongoing effort around the country to choke off women’s access to abortion by any means necessary—either by forcing doctors out of practice, banning procedures outright or demeaning women.” The mildest version of this strategy, already passed into law by states such as Indiana and Nebraska, is to use bogus science to justify banning abortions after twenty weeks, on the fictional grounds that fetuses can feel pain at that gestational age. These bans borrow the logic of Planned Parenthood v. Casey, where the court suggested that scientific advances that keep premature babies alive at younger gestational ages could justify banning abortion at earlier in the pregnancy. Antichoice legislators have pounced on this logic, making bogus scientific claims that fetuses can feel pain to pull the line back well before viability.
More alarmingly, Ohio state House Republicans passed a bill banning abortion in cases where a fetal heartbeat could be detected with up-to-the-minute technology, which would effectively ban abortion since a heartbeat can appear as early as five to six weeks, before abortion is usually a feasible option. As with the twenty-week ban, this legislation is crafted with “scientific advancement” as the rationalization.
Kansas and South Dakota have taken a different path, introducing heavy regulation schemes that leave abortion technically legal but impossible to provide. South Dakota passed into law a requirement that women seeking abortion to have an authorized crisis pregnancy center subject a woman to an antichoice lecture before signing off on her paperwork, but the centers can refuse to provide the service, catching a woman in red tape that prevents legal abortion. Kansas empowered the health department to conduct annual reviews of clinics with ever-stricter regulations designed to squeeze them out of business. In both states, judges stayed implementation of the laws pending trial. This makes it likely the laws will be struck down by the lower courts, but leaves open the possibility of the lawsuits going all the way up to the Supreme Court, especially with the dogged Republican leadership that has made abortion a top priority.