The path to the high court
Several major challenges to state abortion laws are already in the judicial pipeline. One of these will have to get to the Supreme Court to enable a majority to overturn Roe v. Wade.
“It’s not a question of if, it’s a question of what or when,” said Sarah Lipton-Lubet, vice president for reproductive health and rights at the National Partnership for Women & Families.
The cases fall into three major categories.
The first – and most likely type to result in the court taking a broad look at Roe v. Wade – are “gestational” bans that seek to restrict abortion at a certain point in pregnancy, said Ms. Lipton-Lubet.
Mississippi has a 15-week ban, currently being challenged in federal court; Louisiana enacted a similar ban, but it would take effect only if Mississippi’s law is upheld. Iowa earlier this spring passed a 6-week ban, although that is being challenged in state court under the Iowa Constitution.
The second category involves regulations on abortion providers.
One pending case, for instance, involves an Arkansas law that would effectively ban medication abortions. Finally, there are bans on specific procedures, including several in Texas, Arkansas, and Alabama that would outlaw “dilation and evacuation” abortions, which are the most common type used in the second trimester of pregnancy.
Ms. Myrick and Ms. Lipton-Lubet agree that there is no way to predict which abortion case is likely to reach the high court first.
The case that’s actually closest to the Supreme Court, noted Ms. Myrick, is a challenge to an Indiana law that would outlaw abortion if the woman is seeking it for sex selection or because the fetus could be disabled. A federal appeals court found that law unconstitutional in April.
Many analysts also agree that even with the court’s likely philosophical shift, Roe v. Wade might not actually be overturned at all.
Instead, said Ms. Lipton-Lubet, a more conservative court could “just hollow it out” by allowing restrictive state laws to stand.
“The court cares about things like its own legitimacy,” said Ms. Myrick, “and how often a precedent has been upheld in the past.”
Given that Roe’s central finding – that the decision to have an abortion falls under the constitutional right to privacy – has been upheld three times, even an antiabortion court might be loath to overrule it in its entirety.
KHN’s coverage of women’s health care issues is supported in part by The David and Lucile Packard Foundation. Kaiser Health News is a nonprofit national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation that is not affiliated with Kaiser Permanente.