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 The big question is not so much whether the court, with its 5-4
conservative majority that includes two justices appointed by
President Donald Trump, will take up an appeal that could permit new
restrictions on abortion rights, but when it will do so, according
to legal experts.
The court's new nine-month term starts on Oct. 7.
Anti-abortion advocates are hoping the court will chip away at the
1973 Roe v. Wade ruling that legalized abortion nationwide and
recognized a woman's constitutional right to the procedure - or even
overturn the landmark decision.
Appeals already are pending in cases challenging the legality of
Republican-backed abortion restrictions in Indiana and Louisiana,
with legal fights also brewing over laws in other states including
an Alabama measure that would effectively ban all abortions.
(For a graphic on abortion laws in United States, see
https://graphics.reuters.com/USA-ABORTION-RESTRICTIONS/
010092FK33J/index.html)
The court is scheduled to discuss the Louisiana and Indiana appeals
in private on Oct. 1 and announce within days of that meeting
whether it will hear the cases, which could lead to rulings by next
June.
Whether the court proceeds quickly on abortion or takes a slower
approach could depend upon conservative Chief Justice John Roberts,
who has emerged as the court's ideological center amid its rightward
shift with Trump's appointment of Neil Gorsuch in 2017 and Brett
Kavanaugh in 2018.
"I have to believe they will take one sooner rather than later. It's
clear notwithstanding all the decades since Roe v. Wade that there
is intense disagreement among Americans," said John Bursch, a lawyer
with conservative Christian legal group Alliance Defending Freedom,
which opposes abortion.
"Anytime you have that much turmoil in the political process it's
going to create conflicts the court must address," Bursch added.
Abortion opponents are hoping the 2018 retirement of Justice Anthony
Kennedy, a conservative who was pivotal in defending abortion
rights, has created an opening for more restrictions to secure
Supreme Court approval. Kennedy as recently as 2016 cast the
decisive vote in blocking strict regulations on abortion clinics and
doctors in Texas.
Trump, who vowed during the 2016 presidential campaign to appoint
justices who would overturn Roe v. Wade, appointed Kavanaugh to
replace Kennedy.
'NO REASON'
"There should be no reason for the Supreme Court to revisit Roe, but
we know this is exactly what some of the states are trying to do and
what President Trump was looking for in his Supreme Court nominees,"
said Jennifer Dalven, a lawyer with the American Civil Liberties
Union, which is involved in litigation challenging various abortion
restrictions.
Broadly speaking, Republican-controlled states have enacted two
types of abortion laws: measures that impose burdensome regulations
on abortion providers and those that directly seek to ban abortions
during the early stages of pregnancy.
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The latter laws in particular directly challenge Roe v. Wade and a
subsequent 1992 ruling that upheld it. Those two rulings made clear
that women have a constitutional right to obtain an abortion at
least up until the point the fetus is viable outside the womb,
usually around 24 weeks of gestation or soon after.
The Louisiana law imposes restrictions that abortion providers have
said would force them to close. It requires that doctors who perform
abortions have a difficult-to-obtain arrangement called "admitting
privileges" at a hospital within 30 miles (48 km) of the clinic. The
legal issue is similar to the 2016 case in which the court struck
down a Texas admitting privileges requirement.
In February, the court on a 5-4 vote prevented the Louisiana law
from taking effect while litigation continued, with Roberts joining
the court's four liberals. Roberts dissented in the Texas case but
his vote in February indicates he may have some doubts about the
court reversing course on a precedent it set only three years ago.
The Indiana case involves the state's attempt to revive a
Republican-backed law that requires women to undergo an ultrasound
at least 18 hours before undergoing an abortion, a requirement
critics call medically unnecessary.
Legal challenges to laws recently enacted in conservative states
that directly challenge the Roe precedent by banning abortion
outright or in early stages of pregnancy may not reach the court in
time for it to act during its coming term.
In addition to the Alabama ban, Kentucky, Ohio, Mississippi,
Louisiana and Georgia passed measures that would prohibit abortions
after six weeks of pregnancy. Missouri has a similar law that would
prohibit abortion after eight weeks. Facing legal challenges, none
of the laws has yet taken effect.
Other cases that could reach the court sooner include fights over
abortion restrictions in Mississippi, Kentucky and Arkansas that are
pending in appeals courts.
Since Kavanaugh joined the Supreme Court last October, it has sent
mixed signals on abortion. The court in June declined to hear a bid
by Alabama to revive another Republican-backed law that would have
effectively banned abortions after 15 weeks of pregnancy.
In May, it refused to consider reinstating Indiana's ban on
abortions performed because of fetal disability or the sex or race
of the fetus while upholding the state's requirement that fetal
remains be buried or cremated after an abortion.
Julie Rikelman, a lawyer at the Center for Reproductive Rights,
which supports abortion rights, said the Supreme Court is likely to
take up a case on one of the restrictive laws rather than a measure
that directly bans abortion, meaning it could avoid having to decide
for now on overturning Roe v. Wade.
"What's important for people to know," Rikelman said, "is that even
while Roe is the law, there is a great deal of harm that can be
done."
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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