State abortion bans face legal challenges after Supreme Court ruling on Roe v. Wade

When the Supreme Court overturned Roe v. Wade, the legal battle over abortion rights shifted to the state level. Abortion providers in some states have been left confused over conflicting laws and shifting guidance from leaders. Cary Franklin, faculty director of the UCLA Law Center on Reproductive Health, Law, and Policy, joins Judy Woodruff to discuss.

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  • Judy Woodruff:

    When the Supreme Court overturn Roe v. Wade, the battle over abortion rights shifted to the state level. Now abortion services are banned completely in seven states, and bans will soon go into effect in four others with so-called trigger laws.

    President Biden in a meeting with nine Democratic governors this afternoon to discuss all this said — quote — "I think people are going to be shocked when the first state tries to arrest a woman for crossing a state line to get health services. I don't think people believe that's going to happen, but it's going to happen."

    Legal battles over state laws have already begun. Courts placed bands and three states on hold this week. And, in some states, abortion providers have been left confused over conflicting laws and shifting guidance from leaders.

    Joining me now to discuss the nation's new patchwork of laws is Cary Franklin. She is the faculty director of the Center on Reproductive Health, Law & Policy at the UCLA School of Law.

    Professor Cary Franklin, welcome to the "NewsHour."

    I think a number of people look at the — what they think may happen after Roe v. Wade being overturned. They think of the coasts of the country largely being open to abortion, but the middle of the country and the South not. Is that roughly what the country is going to look like now?

    Cary Franklin, UCLA School of Law: That appears to be how it will look.

    We're seeing Roe poll the red states and blue states further apart, in the sense that the response, as we knew, in the anti-abortion states would be to enact more legislation and more restrictions, but also, in the reproductive freedom states, the blue states, we're seeing a lot of lawmaking as well to amplify protections and to increase funding for care.

    So where you live in this country is extremely determinative of your rights and will be even more so going forward.

  • Judy Woodruff:

    Well, within these states that have conservative Republican leadership in the governor's office and the legislatures, states, many of which have these trigger laws, where abortion bans were to go into effect, we now see, as we mentioned, challenges in three of them, Kentucky, Louisiana, Utah.

    What do you see unfolding in these states?

  • Cary Franklin:

    I think it remains to be seen.

    I would describe the situation nationwide now as chaotic. We see laws going into effect. We see laws being enjoined. We see clinics canceling appointments and then calling people and rescheduling these appointments. I think judges are scrambling to try to figure out — some states have old laws that they're trying to bring into effect.

    Are those laws antiquated? Have they been superseded by new laws? Do these new trigger laws comport with state constitutions? Because what happened on Friday is, the Supreme Court said, the United States Constitution doesn't protect your right to abortion. But now we have 50 other constitutions, under which we're going to have to decide what rights are available.

    A lot of these constitutions have protections for privacy, for liberty, for equal protection, and we're going to have to work out on the state level exactly what the state constitutions afford.

  • Judy Woodruff:

    And then you have the states, Professor Franklin, with a Democratic governor, Democratic state legislature, states that are going to be seeking to protect women's access to abortion.

    What do you see unfolding there in terms of challenges?

  • Cary Franklin:

    I see a lot of laws being passed in terms of increasing funding, in terms of increasing the number of providers.

    I think some of the challenges will involve blue states trying to insulate providers and those who help people seeking care from attempts by anti-abortion states to reach across borders. So, states like California and New York, Connecticut, Massachusetts are passing laws saying, we're not going to use our state courts, our state law enforcement to extradite people or to enforce your judgments when they are contrary to our constitutions and our deepest legal commitments.

  • Judy Woodruff:

    And I do want to also ask you about what President Biden said today, that he's going to be on the lookout, that we all should be on the lookout for states that essentially are going to be going after women who try to cross a state line to get an abortion.

    What do you see happening in that regard?

  • Cary Franklin:

    The law is very unclear in this regard.

    I think there was a very important signal in the Dobbs decision on Friday, when Justice Kavanaugh said, if a state tried to ban an abortion seeker from leaving a state to get care, that would, he said, clearly violate the constitutional right to travel, signaling that some of the justices who are over — willing to overturn Roe might think there are some limits on how much red states can try to extend their laws to conduct that happens beyond their borders.

    I will just say, there has been commentary from the right for a long time that overruling Roe would get the courts out of the abortion umpiring business. And I do not think that will happen. Roe is overturned, and we are seeing a flood of lawsuits and will for many years over these very difficult questions of conflicts of laws, states trying to apply laws outside their borders, and a lot of messy and complicated legal questions coming our way.

  • Judy Woodruff:

    And with regard to some of those messy and complicated legal questions, what about any laws with regard to medication-induced abortions, which we now know constitute over half the abortions in this country?

  • Cary Franklin:

    I think that will be a big area of litigation going forward.

    The FDA has found medication abortion to be safe and efficacious up to 10 weeks. There's a possibility that the FDA determinations that these medications are safe may preempt some state restrictions that go beyond what the FDA has said is necessary. I do think medication abortion will be a big part of the puzzle.

    I think we will see a lot of lawsuits about it. And only time will tell how strong the FDA's rulings about the safety of this medication are in states that are trying to restrict it.

  • Judy Woodruff:

    And, finally, I know you were telling us you were also looking at the effect all of this could have on women's access to health care broadly speaking.

  • Cary Franklin:

    Yes, I am seeing some reports that doctors, providers and pharmacists have been hesitant to prescribe or fill prescriptions for drugs such as methotrexate, which are involved in treating ectopic pregnancies, or misoprostol, which are involved in miscarriage care, but are also used in medication abortion.

    And some of these laws are so broad and vague that providers are afraid that, even if they're treating ectopic pregnancies and miscarriages, overzealous prosecutors may come after them. And we're seeing doctors already pulling back from care.

    And I think there's a real concern that this new regime will affect not just people seeking abortion, but may deleteriously affect the health of lots of women and pregnant people.

  • Judy Woodruff:

    Well, what I hear you saying, among other things, is, we're looking at a lack of clarity for some time to come.

    Professor Cary Franklin at the UCLA School of Law, we thank you.

  • Cary Franklin:

    Happy to be here.

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