Now that President Donald Trump has the opportunity to appoint a new justice to the Supreme Court, some abortion opponents hope that Roe v. Wade will end up overturned or gutted — and they have already been working towards that moment.
Over the past year, state legislatures in Iowa, Louisiana and Mississippi have advanced strict limits on abortion that some lawmakers believe could trigger a successful challenge to the landmark 1973 Supreme Court decision that legalized abortion nationwide.
“I think it’s virtually certain that some or all of those laws will wind up before the Supreme Court,” said CNN legal analyst Jeffrey Toobin. “And they will get a much more favorable reception with any of the judges on President Trump’s list of 25 possible nominees.”
When Trump ran for president in 2016, he pledged to appoint “pro-life” justices to the Supreme Court, while his running mate, now-vice president Mike Pence, said that he hoped to see Roe v. Wade end up on the “ash heap of history.”
Trump’s first Supreme Court pick, made after Senate Republicans blocked President Barack Obama’s pick to fill a Supreme Court vacancy, was Neil Gorsuch, who has been a reliable conservative vote. Trump said he will pick from a list of 25 conservative candidates.
Trump’s opportunity to replace Justice Anthony Kennedy, who had voted to uphold Roe in 1992, is “exactly what we had hoped for,” said Jim Carlin, an Iowa Republican state senator.
“With (Kennedy) as the swing vote, I don’t know that we would have had the capital on the Supreme Court to reverse Roe v. Wade,” Carlin said. “If we were to get another conservative justice to the bench at the Supreme Court, I think our chances are much, much higher.”
“Anything that we can do to soften the blow of Roe v. Wade or weaken it or dilute it, it’s up to us to do that,” said Lawrence Bagley, a Louisiana Republican state representative.
Iowa’s “heartbeat” law prohibits doctors from performing an abortion if a fetal heartbeat can be detected, which can happen as early as six weeks, with exceptions in the case of certain instances of rape, incest or medical emergency.
Mississippi and Louisiana recently passed legislation banning abortion after 15 weeks with limited exceptions.
In Arkansas, a legal battle is currently playing out over a law that imposes limitations on access to medication-induced abortions.
Planned Parenthood reacted on Wednesday to the news that Kennedy will step down with alarm.
“The right to access abortion in this country is on the line,” Dawn Laguens, the executive vice president of Planned Parenthood Federation of America, said in a statement. “The idea of Trump having his choice to fill another vacancy is terrifying for not only abortion rights, but for our ability to live free from discrimination in this country.”
Veronica Fowler of the ACLU of Iowa said that while getting the law to the Supreme Court “was definitely the goal of some extremist politicians in the Iowa Legislature,” the group “purposely chose to challenge it under the Iowa Constitution because any appeals would end up in the Iowa Supreme Court.”
She added, “the US Supreme Court does not have the opportunity to review state supreme court decisions concerning state constitutional questions — it doesn’t have jurisdiction.”
The fact that the law faces a state challenge hasn’t convinced some of its supporters that it won’t make it to the Supreme Court, however.
“The question we are raising is if you have a heartbeat, you have a life and if you have a life then under the Constitution, you are guaranteed a right to life and due process and equal protection under the law before that life is taken away,” Greg Heartsill, an Iowa GOP state representative, said in an interview. “That’s essentially what we’re putting before the court and if they do their due diligence, they’ve got to answer.”
In the end, the Supreme Court doesn’t have to entirely overturn Roe v. Wade to leave the legal standard substantially weakened or even effectively gutted, said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law.
“The Supreme Court could do quite a lot of damage to the right recognized in Roe without ever formally overruling it, simply by upholding state laws that make it harder and harder for women to obtain abortions without banning them,” Vladeck said.
That idea could be tested in Arkansas.
The 2015 state law says that any physician who “gives, sells, dispenses, administers, or otherwise provides or prescribes the abortion-inducing drug” shall have to have a contract with a physician who has admitting privileges at a nearby hospital.
The Supreme Court last month refused to take up an early challenge to the law, which cleared the way for it to take effect in mid-July, but did not say if the law is legal or not, leaving that to a lower court to determine. Earlier this month, a federal judge imposed a temporary restraining order on the law, setting the stage for the case to potentially return to the Supreme Court at some point in the future. Planned Parenthood has said that the law is both medically unnecessary and would effectively ban medication abortion in the state.
Elizabeth Nash of the Guttmacher Institute, a reproductive rights research organization, said the Arkansas law “conflicts with Roe by imposing an undue burden on a patient seeking an abortion.”
In Mississippi, after Republican Gov. Phil Bryant signed the bill banning abortion after 15 weeks, the Center for Reproductive Rights filed a lawsuit in federal court challenging it as unconstitutional and a federal judge temporarily blocked the law from going into effect. Louisiana’s 15-week law is also on hold pending the outcome of litigation in the Mississippi law.
The Center for Reproductive Rights points out that in recent years, the Supreme Court has declined to review a number of lower court decisions striking down abortion bans prior to the point of viability.
“The Supreme Court has repeatedly upheld the right to abortion over many decades and it has done that with many justices from appointed by many different administrations,” said the group’s senior director of litigation, Julie Rikelman.
State lawmakers pledge to keep trying.
“Until the Supreme Court chooses to touch on that issue again, you’re going to continue to see states push the edge and push the envelope on pro-life protections,” said Louisiana state Rep. John Stefanski.
“I think inevitably we’re going to come up with something that I believe the Supreme Court is going to have to take a look at again,” the GOP lawmaker added.