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.
If the heavy regulation schemes and the gestational age bans on abortion reach the Supreme Court, the Roberts Court will likely expand state power to ban abortion without explicitly overturning Roe. Roe is premised on the balancing of a woman’s right to privacy against the interest the state has in the potential life of the fetus. Unlike most balancing tests the Court has created, Roe set a hard and fast rule that the state may not interfere with a woman’s intention to obtain an abortion in her first trimester and allowed some restrictions on second-trimester abortions. After the second trimester, the fetus’s viability compels enough state interest to overcome the privacy rights of the mother, though exceptions were made for the life and health of the mother.
Until recently, Roe has been considered an insurmountable obstacle to states that wish to ban abortion. The conservative side of the Roberts bench, however, will likely view the Roe decision as a seesaw with women’s rights on one side and the state interest in the fetus on the other. Currently, most of the weight is on the woman’s side for three months, some weight moves over to the state’s side for the next three months, and then most of the weight moves to the state’s side for the last trimester.
Roberts has two options for reshaping Roe. The first is to claim the state’s interest in fetal life starts even sooner, using bogus science to claim we know more about the fetus than we did 1992, when Planned Parenthood v. Casey was decided. The second option is to change the Court interpretation of individual state rights and compelling state interest, while leaving Roe’s framework technically in place. The court could, for instance, define the state’s interests more broadly, allowing it to regulate differently within the (technically) still-operative Roe framework. This would allow a state like Kansas to claim to still have legal abortion while burying would-be abortion providers under so much red tape they couldn’t keep a clinic open. It would also allow states like South Dakota to create so many hoops for women to jump through to get abortion that women simply wouldn’t be able to do it. The right to choose would theoretically exist, but only to the extent states deign to recognize it.
Political science professor Scott Lemieux has written extensively about Roberts’s enthusiasm for refusing to explicitly overrule precedent, and he agreed that the Court would likely empower the states to ban abortion without overturning Roe. “Roberts and Alito might be more reluctant than Scalia and Thomas to overrule Roe directly,” he explained, “but they will almost certainly never vote to hold an abortion regulation unconstitutional.” Jennifer Dalven, the director of the ACLU Reproductive Freedom Project agreed, pointing out that the antichoice movement has been whittling away abortion rights for some time, but, “the difference this year is that instead of using a chisel, they’ve pulled out a jackhammer.”
Should the Roberts court legalize banning abortion in this way, trigger laws are unlikely to come into play. The elimination of legal abortion state by state would be a slow process of passing restrictions. By making the elimination of abortion a slow process, the religious right would be able to keep the antichoice movement organized and energized. And ready to go for the next fight: restricting access to contraception.