Abortion ban aims for high court, but won’t get there soon

WASHINGTON (AP) — Alabama’s virtual ban on abortion is the latest and most far-reaching state law seemingly designed to prod the Supreme Court to reconsider a constitutional right it announced 46 years ago in the landmark Roe v. Wade decision.

But Chief Justice John Roberts may prefer a more incremental approach to reining in abortion rights than the frontal attack Alabama’s new law or the “fetal heartbeat” measures enacted by other states present.

The passage of abortion restrictions in Republican-led states and a corresponding push to buttress abortion rights where Democrats are in power stem from the same place: Changes in the composition of the high court. The retirement of abortion-rights supporter Justice Anthony Kennedy and the addition of President Donald Trump’s appointees, Brett Kavanaugh and Neil Gorsuch, may make the court more willing to cut back on the right to abortion, if not take it away altogether.

Several state restrictions already are pending before the justices, and it seems likely that at least one abortion case will be on the court’s calendar next term, with a decision likely in the midst of the 2020 presidential campaign.

Some questions and answers on the legal fight over abortion rights and how the Supreme Court could respond:


Not that quickly. The law is certain to be challenged in federal court in Alabama and almost surely will be blocked because it plainly conflicts with Supreme Court precedent. Review by the federal appeals court in Atlanta would come next, and only then would the Supreme Court be asked to weigh in. Emergency appeals by either side could put the issue before the justices sooner, but that would not be a full-blown review of the law.



Indiana has appealed lower court rulings blocking provisions prohibiting abortions over race, sex or disability, regulating the burial of fetal remains and requiring a pregnant woman to undergo an ultrasound at least 18 hours before an abortion. The first two of those issues have been pending at the Supreme Court for months with no explanation.

Separately, Roberts and the liberal justices blocked a Louisiana law regulating abortion clinics from taking effect in February, making the chances good that the court will review the law next term and issue a decision by June 2020.

Alabama has appealed a ruling invalidating a law prohibiting the most common method of abortion in the second trimester.

Four other states — Mississippi, Kentucky Ohio and Georgia — enacted laws this year banning abortion once a fetal heartbeat is detected, which can occur as early as the sixth week of pregnancy. None of those laws has yet taken effect, and lawsuits have been filed or are planned to block all of them.



Abortion-rights activists say they have no alternative but to file lawsuits challenging every tough abortion ban passed.

“Were we not to challenge them, they would go into effect,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “There’s no strategy of ‘Maybe we leave this one and challenge that one.'”

The ACLU and its allies expect lower-level federal courts to honor Roe by blocking the abortion bans. The ultimate question, Dalven said, is whether the Supreme Court will decide to revisit Roe by agreeing to hear an appeal from one or more of the states whose ban was blocked.

“It would be an extraordinary thing for the Supreme Court to take away an individual constitutional right,” she said.

Anti-abortion activists hope the high court will be willing to reconsider Roe.

“It is clearer than ever that Roe is far from being settled law in the eyes and hearts of the American people, and this is increasingly reflected in state legislatures,” said Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List. “The American people want a fresh debate and a new direction.”


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