Four State-Level Abortion Restrictions That Could Go to the Supreme Court
President Trump is a direct threat to abortion rights, particularly if he gets more than one Supreme Court nominee. An end to Roe vs. Wade would send abortion back to the states. Women’s access to abortions would then depend on geography. So will abortion make it to the Supreme Court? And will the wrong case end abortion as a Constitutional right?
For that to happen, only two things must occur:
- A lawsuit about an abortion regulations under Roe must wind its way to the Supreme Court
- A majority of the Court must vote against abortion rights. This probably wouldn’t happen unless Trump nominated a second Supreme Court justice.
A number of state level abortion restrictions may soon give rise to lawsuits. In 2016 alone, 19 states enacted 60 new abortion restrictions. Here are some of the most disturbing.
A new law in Arkansas permits husbands to sue their wives to stop abortion. With no exception for rape, the law fundamentally undermines the right to privacy that underpins Roe vs. Wade.
Second Trimester Abortion Bans
Roe vs. Wade preserves the right to abortion up to the point of viability. Lawmakers in numerous states want to prohibit the procedure well before viability. Ohio recently enacted legislation banning abortion after 20 weeks. A number of states have recently banned dilation and evacuation (D&E), the safest and most popular second trimester abortion option. The Pennsylvania Senate just passed legislation banning the procedure. If the measure meets the approval of the House and governor, it could become law.
So-called personhood amendments define fetuses—and occasionally even fertilized eggs—as human beings. This enshrines for them the same rights that living, breathing women posses. And in the case of a woman seeking an abortion, a fertilized egg has the right to remain in the woman’s body, no matter how she feels about it, and no matter how it got there.
Personhood amendments almost never contain exceptions for rape or the life of the mother. In Wisconsin, anti-choice activists argued that the life of the mother is a “loophole” used to unfairly seek abortions.
A related group of laws, fetal heartbeat laws, prohibit abortion as soon as a fetus has a heartbeat—usually around six weeks’ gestation. One such law passed the Ohio legislature last year, but Governor John Kasich vetoed it.
Burying Fetal Remains
In their quest to penalize women, a number of states now require them to bury all fetal remains, including those from miscarriages. These laws are largely nonsensical, since abortion rarely produces a “body,” and miscarriages are often indistinguishable from menstrual periods.
Indiana’s fetal burial law sparked a national backlash in the form of “Periods for Pence.” Now Texas has a similar rule. Women’s groups already plan to sue—a decision that could launch the law on a journey toward the Supreme Court.
What Happens Now?
These laws present choice advocates with an impossible conundrum. They can let the law stand, thereby depriving women of abortion rights but preventing the case from going to the Supreme Court. Or they can fight back, risking nationwide abortion rights in the process.