A Look At The Likely Court Fight Over Abortion Rights

May 15, 2019, 2:58 PM | Updated: Jun 8, 2022, 5:07 pm
FILE: An anti-abortion advocate rallies outside of the Supreme Court during the March for Life, Jan...
FILE: An anti-abortion advocate rallies outside of the Supreme Court during the March for Life, January 27, 2017 in Washington, DC. (Photo by Drew Angerer/Getty Images)
(Photo by Drew Angerer/Getty Images)
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.”



Kennedy’s retirement and Kavanaugh’s confirmation in October leave the four liberal justices playing defense, or trying to prevent the court from undoing earlier decisions. Kennedy was a key part of the court majority that reaffirmed abortion rights in 1992 in a decision that measures restrictions on abortion by whether they place an “undue burden” on a woman’s right to have one.

The justices don’t overturn precedent often, even when it’s a decision they disagree with. And when they do, it’s usually because an earlier decision is “egregiously wrong,” as Kavanaugh put it earlier this term.

Justice Stephen Breyer offered the latest recognition of the difficulty his liberal side of the court faces in a dissent in a case unrelated to abortion that the court decided Monday, one in which the five conservatives voted to overturn a 1979 decision.

Breyer, joined by liberal colleagues Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, cited the 1992 abortion decision in Planned Parenthood of Southeastern Pennsylvania v. Casey in a dissent that concluded: “Today’s decision can only cause one to wonder which cases the court will overrule next.”

Justice Clarence Thomas is the only member on record as supporting overruling the court’s abortion precedents. In his most recent comments on the topic in February, also in a case unrelated to abortion, Thomas likened Roe to the court’s 1857 Dred Scott decision, which said African Americans weren’t citizens. Both, he wrote, were “notoriously incorrect.”



With Kennedy gone, Roberts is now the justice closest to the court’s center. The chief justice also has a track record of preferring smaller bites before making significant changes in constitutional law.

“You do see consistently in the chief justice’s career a willingness to go incrementally and only decide what the court needs to resolve in the case before it,” said Michael Moreland, a Villanova University law professor.

Roberts also is aware of the questions the court would face if a conservative majority of justices, all appointed by Republican presidents, were to reverse the abortion decisions, Moreland said.

Still, Roberts has, with one exception, favored abortion restrictions. His provisional vote to block the Louisiana clinic law was the only time he voted in support of abortions rights in more than 13 years on the court.


Crary reported from New York.

KSL 5 TV Live

Top Stories

National News

President Joe Biden announced the return of seven Americans he said were wrongfully detained in Ven...
Betsy Klein, Arlette Saenz and Jennifer Hansler, CNN

Biden announces return of seven American detainees from Venezuela

President Joe Biden on Saturday announced the return of seven Americans he said were wrongfully detained in Venezuela for "years."
15 hours ago
The wreckage of a car teeters on a buckled roadway in the wake of Hurricane Ian on Sept. 30, 2022, ...
Meg Kinnard and Adriana Gomez Licon, Associated Press

Dozens dead from Ian, one of strongest, costliest US storms

Rescuers continue to search for survivors in flooded homes in Florida after Hurricane Ian's passage earlier this week.
15 hours ago
U.S. President Joe Biden delivers remarks during a reception to celebrate the Jewish New Year with ...

Biden vows Russia won’t ‘get away with’ Ukraine annexation

The United States and its allies are hitting back at Russia’s annexation of four more Ukrainian regions, slapping sanctions on more than 1,000 Russian individuals and companies.
2 days ago
A dip in suicide rates in 2019 continued into 2020, but the CDC report, released on September 30, s...
Deidre McPhillips, CNN

US suicide rates rose in 2021, reversing two years of decline

A dip in suicide rates in 2019 continued into 2020, but a CDC report released on Sept. 30 shows that 2021 reversed most of that improvement and brought rates back to near-record levels.
2 days ago
FILE - The newly painted Cinderella Castle at the Magic Kingdom at Walt Disney World is seen with t...
Forrest Brown, CNN

Florida theme parks and tourist attractions: What’s open and closed

Walt Disney World and a few other places reopened on Friday, and other major spots aim to reopen this weekend.
2 days ago
U.S. Supreme Court Associate Justice Ketanji Brown Jackson and Chief Justice John Roberts pause for...
MARK SHERMAN, Associated Press

Justice Jackson makes Supreme Court debut in brief ceremony

Justice Ketanji Brown Jackson has made her first appearance on the Supreme Court bench in a brief courtroom ceremony three days before the start of the high court’s new term.
2 days ago

Sponsored Articles

Portrait of smiling practitioner with multi-ethnic senior people...
Summit Vista

How retirement communities help with healthy aging

There are many benefits that retirement communities contribute to healthy aging. Learn more about how it can enhance your life, or the life of your loved ones.
Happy diverse college or university students are having fun on their graduation day...
BYU MBA at the Marriott School of Business

How to choose what MBA program is right for you: Ask these questions before you apply!

Wondering what MBA program is right for you? Take this quiz before you apply to see if it will help you meet your goals.
Cloud storage technology with 3d rendering drawer with files in cloud...
PC Laptops

How backing up your computer can help you relieve stress

Don't wait for something bad to happen before backing up your computer. Learn how to protect your data before disaster strikes.
young woman with stickers on laptop computer...
Les Olson

7 ways print marketing materials can boost your business

Custom print marketing materials are a great way to leave an impression on clients or customers. Read for a few ideas to spread the word about your product or company.
young woman throwing clothes to organize a walk in closet...
Lighting Design

How to organize your walk-in closet | 7 easy tips to streamline your storage today

Read our tips to learn how to organize your walk-in closet for more storage space. These seven easy tips can help you get the most out of your space.
Types of Computer Malware and Examples...
PC Laptops

5 Nasty Types of Computer Malware and Examples | Everything You Need to Know to Keep Your Computer and Family Safe

Here are the different types of computer malware and examples that could potentially infect your computer.
A Look At The Likely Court Fight Over Abortion Rights