Subscribe to Here’s the Deal, our politics
newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
The dramatic abortion restrictions — verging on outright bans — passed by Alabama, Georgia and Missouri lawmakers have made many Americans wonder whether legal challenges to such laws could eventually reach the high court and have a shot at overturning Roe V. Wade.
But in fact the U.S. Supreme Court already has four abortion-related cases pending, and whether the justices choose to hear and decide them could offer some hints as to the future of abortion rights in Chief Justice John Roberts’ court.
READ MORE: Could Alabama’s abortion ban help the movement to overturn Roe v. Wade?
The four cases are so-called petitions for review, or certiorari. The justices have considered two of the petitions many times during their private conferences, and yet they have not decided whether to hear arguments and make rulings. Monday is the next opportunity to learn what the justices may do.
Here’s a quick look at the four petitions on the docket.
In two separate petitions by the same name, Indiana asks the justices to resurrect state restrictions on abortion that were signed into law by then-governor, now Vice President Mike Pence.
In the first petition, the state defends its law requiring the disposal of aborted or miscarried fetuses by cremation or internment. Perhaps the most direct threat to the landmark Roe v. Wade, the state law’s other requirement prohibits what it calls “discriminatory” abortions based on sex, race or disability of the fetus. The only exception is for a “fetal condition that … will with reasonable certainty result in the death of the child not more than three months after the child’s birth.”
In the second petition, Indiana also defends its requirement that women seeking an abortion must first get an ultrasound at least 18 hours before the procedure and be given the option of viewing it and hearing the fetal heartbeat.
A federal appellate court blocked all of those state law restrictions.
Before this week, when Alabama’s Gov. Kay Ivey signed the near-ban on abortion with few exceptions, a state law criminalized performing an abortion using the dilation and evacuation (D&E) method. D&E is the most commonly used procedure for performing pre-viability, second-trimester abortions. It is also the only abortion method available in Alabama starting at 15 weeks, accounting for 99 percent of abortions in the state from that point onward, according to the Women’s Center.
The law’s sole exception is for an abortion that is “necessary” to “avert [the woman’s] death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.” Penalties for violating the act include two years’ imprisonment and $10,000 in fines.
A federal court found there were no feasible and safe alternatives to D&E available and that the state law would force Alabama women to “lose their right to pre-viability abortion access at or after 15 weeks.”
Back in February, the Supreme Court received an emergency request from a women’s health care clinic, June Medical Services. The organization asked the justices to block the enforcement of a Louisiana law requiring physicians who perform abortion to have hospital admitting privileges. A federal appellate court had reversed a lower court’s order stopping the law.
The Louisiana law is nearly identical to the Texas law that a 5-3 Supreme Court had struck down in 2016.
The justices, in an unsigned order, granted the request of the Louisiana women’s center and temporarily blocked the state requirement, but four justices dissented: Samuel Alito Jr., Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. Chief Justice Roberts sided with the court’s liberal wing.
Last month, June Medical Services filed its petition for review and now the justices must decide what to do with it.
None of these petitions ask the Supreme Court to overrule Roe v. Wade. But each offers the justices the opportunity to erode that 46-year-old decision, step by step. The court did the same thing with campaign finance regulations, culminating in the Citizens United decision that overruled a 1990 precedent, as well as with union agency shop fees, ending in the Janus decision last year that said public employees can’t be required to contribute to labor unions that represent them in collective bargaining, overruling a 41-year-old decision.
The justices, of course, can always decline to review those petitions or any others that come before them. And it’s highly likely that more than a few of them will be reluctant to step into this highly divisive area in an election year. Stay tuned.
NewsHour regular, Marcia Coyle, is Chief Washington Correspondent for The National Law Journal where she covers the U.S. Supreme Court and national legal issues.
Support Provided By: