It won’t be “automatic,” but with Justice Brett Kavanaugh now serving on the Court, a reversal of that landmark abortion decision looks increasingly likely. And regardless of what happens on the Supreme Court, Trump’s presidency has already begun shaping abortion law around the country. Perhaps emboldened by his judicial appointments, legislators are introducing new abortion bans that directly challenge the tenets of Roe.
One such law, a ban on abortions after 15 weeks, was signed by Mississippi Gov. Phil Bryant, a Republican, in March. More states have moved to restrict abortion since: On May 4, Republican Iowa Gov. Kim Reynolds signed a bill banning abortions after a doctor can detect a fetal heartbeat, or as early as six weeks. The Ohio House of Representatives passed a similar bill in November.
The Mississippi law, which contains exceptions for medical emergencies or severe fetal abnormalities, but none for rape or incest, was immediately challenged in court by the Jackson Women’s Health Organization, the state’s last abortion clinic. On November 20, a federal judge struck down the law, arguing that it “unequivocally” infringes on women’s rights. It’s not clear whether the state will appeal.
Anti-abortion groups for years have been trying to close Jackson Women’s Health, also known as “the pink house” for the building’s bright paint. But the Mississippi law may also be part of a broader effort by anti-abortion advocates to bring a challenge to Roe v. Wade before what they hope will be a friendly Supreme Court. The ultimate goal is to open the door for nationwide restrictions on abortion rights. And with Trump in the White House, that goal might be more achievable than ever.
The Mississippi ban is in clear conflict with Roe v. Wade
Mississippi’s ban was in effect for less than an hour before Jackson Women’s Health filed suit. “The law is blatantly unconstitutional,” said Hillary Schneller, a lawyer for the Center for Reproductive Rights who is representing the clinic.
The Supreme Court has said in Roe v. Wade and elsewhere that states cannot ban abortion before viability, when a fetus can survive outside the womb. Viability varies from pregnancy to pregnancy, but doctors today typically put it around 24 weeks. No fetus is viable at just 15 weeks, as the clinic’s lawsuit points out.
The ban could have had an impact almost immediately. According to court documents, one patient who was more than 15 weeks pregnant was scheduled for an abortion on March 20. The ban would have forced the clinic to turn her away.
That afternoon, however, a judge granted a temporary restraining order blocking the ban from taking effect for 10 days. That allowed the clinic to perform the procedure on the patient who was scheduled for March 20, Schneller told Vox, as well as performing abortions for patients who have already scheduled abortion counseling appointments with the clinic. Mississippi law requires that patients receive counseling at least 24 hours before an abortion.
On November 20, US District Judge Carlton Reeves struck down the 15-week ban and issued a sharp criticism of its supporters in the Mississippi legislature, as CNN reports. “The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” he wrote. He also said that the state’s “professed interest in ‘women’s health’ is pure gaslighting.”
It’s not yet clear if the state will appeal the ruling, but a spokesperson for Gov. Bryant said in a statement that the governor “fully supports the defense of this law moving forward.”
In the long term, Schneller is optimistic about her clients’ chances. “The Supreme Court has said for over 40 years that a state cannot ban abortion prior to viability,” she told Vox.
“Every time in the recent past,” she added, “when the court has been asked to review court decisions striking down previability bans at six weeks, at 12 weeks, at 20 weeks, the court has refused to hear those challenges. In that way, again, they are saying they are not ready to revisit this very clear line.”
But anti-abortion groups see an opening
Previability bans have been struck down in Arizona, North Dakota, and Arkansas in recent years. But states keep trying. Legislators around the country have introduced a variety of restrictions in recent months:
- On March 19, legislators in Ohio introduced a bill that would ban abortion outright in the state. That bill has yet to come up for a vote, but on November 15, the Ohio House of Representatives passed a bill that would ban abortion after a fetal heartbeat can be detected — which can happen as early as six weeks. The bill now goes to the state Senate.
- In May, Gov. John Bel Edwards of Louisiana, a Democrat, signed a bill banning abortion after 15 weeks; it will only take effect if the Mississippi law is upheld, according to the Associated Press.
- A bill passed by the Iowa state legislature on May 2 and signed by Gov. Reynolds on May 4 requires patients seeking abortions to get an ultrasound. If the scan detects a fetal heartbeat, the patient is banned from getting an abortion, except in cases of rape, incest, a threat to the patient’s life, or severe fetal anomaly. Proponents of the bill say they hope it will make it to the Supreme Court and lead to the overturning of Roe.
- On March 27, the Kentucky House of Representatives passed a bill banning dilation and evacuation, a procedure often used in second-trimester abortions, if a patient is more than about 11 weeks pregnant. The bill, signed into law by Republican Gov. Matt Bevin in April, is facing a court challenge.
- Republican Gov. Eric Holcomb of Indiana signed a law on March 25 that will require doctors who treat patients for complications of abortion to report to the state those patients’ age, race, and county of residence, among other information. Critics of the law say it will stigmatize abortion, which has relatively low complication rates compared with other standard medical procedures, according to the Associated Press.
Of course, abortion restrictions at the state level are nothing new. In 2012, Jackson Women’s Health filed suit against a Mississippi law requiring that doctors performing abortions have admitting privileges at a local hospital. That law was blocked in 2013.
But recently, anti-abortion groups and legislators may be focusing more attention on previability bans like Mississippi’s. One possible reason, said Heather Shumaker, senior counsel for reproductive rights and health at the National Women’s Law Center, is that the Supreme Court decision in Whole Woman’s Health v. Hellerstedt makes it harder for anti-abortion advocates to pursue a previous strategy of passing laws that restrict clinic operations, sometimes severely enough to drive them out of business.
In Whole Woman’s Health, the Court found that several such laws, including one requiring doctors to have admitting privileges, imposed an undue burden on patients seeking abortions and were unconstitutional.
Another reason for the new bans might be the Trump administration. In addition to two Supreme Court justices widely seen as anti-abortion, Kavanaugh and Neil Gorsuch, Trump has also nominated — and the Senate has confirmed — more than a dozen federal district court and appeals court judges considered to be friendly to anti-abortion causes, as NPR reports.
“The anti-abortion movement is feeling emboldened to really kind of take the next step,” Shumaker said. That explains “this approach to push a clearly unconstitutional ban on abortion in states where they think that it could be successful.”
The ultimate goal, she said, is to get one of the bans to the Supreme Court, where a favorable decision would pave the way for previability bans around the country.
Some dispute whether the actions of the Trump administration had anything to do with Mississippi’s 15-week ban. The Mississippi Center for Public Policy, a think tank that helped draft the law, was inspired by other countries around the world that limit abortion after the first trimester, said Jameson Taylor, the group’s acting president.
“We’re proud that we can take the lead in making that the standard for the state of Mississippi, and hopefully that can become the standard for the rest of the country,” Taylor added.
He believes the Supreme Court has already abandoned the viability standard for judging state abortion restrictions, arguing that the Court’s 2007 decision in Gonzales v. Carhart, which upheld a law banning certain types of late-term abortions, also upheld the legality of imposing previability restrictions on the procedure.
“We’re confident that the Supreme Court will ultimately uphold this law,” he said.
It’s far from clear that Mississippi’s ban will get to that point. But regardless of what happens in Mississippi, more such cases are likely to follow, whether they come from Ohio, Louisiana, or elsewhere. And the more anti-abortion judges Trump adds to the federal bench, the better chance each case has of succeeding.