If Supreme Court nominee Brett Kavanaugh is confirmed, Roe v. Wade could be overturned in less than a year.
That’s because 13 abortion cases are already before circuit courts around the country, the last step before reaching the Supreme Court. Reproductive rights advocates say any one of them could provide an opportunity for a Kavanaugh Court to reconsider the right to an abortion set forth in Roe.
Before and during his confirmation hearings, Kavanaugh has been vague about his views on Roe and abortion rights. But advocates point to President Trump’s promise to appoint anti-abortion justices, as well as Kavanaugh’s opinion in a case involving a pregnant unauthorized immigrant minor, as evidence that he could be the deciding vote to restrict Americans’ reproductive rights. Kavanaugh would replace retiring Justice Anthony Kennedy, often a crucial swing vote on issues like abortion.
Because of Roe, states can’t ban abortion outright. Instead, legislatures have passed a number of measures in recent years that restrict access to the procedure — by imposing onerous and often medically unnecessary restrictions on providers, for example, or by banning particular abortion techniques. Abortion providers and others have challenged these laws in court, arguing that they violate Roe or the 1992 decision Planned Parenthood v. Casey, which states that laws may not place an “undue burden” on a patient’s right to an abortion.
Thirteen of these challenges have now reached federal courts of appeals, meaning they’re one step away from the Supreme Court. If the Court agrees to hear one of them — which could happen as early as this year — it could provide an opportunity for the justices to revisit the right to an abortion guaranteed in Roe.
Even with Kavanaugh replacing Kennedy, the Court might not fully overturn Roe. Many believe it’s more likely that the Court would weaken abortion protections by, for example, altering the “undue burden” standard set forth in Casey.
But such a decision could have nearly the same impact as eliminating Roe since it would allow states to effectively block abortion access by imposing ever more onerous restrictions — a strategy anti-abortion groups have already pursued to great effect in states like Mississippi. Even if the words “‘Roe v. Wade is now overruled’ don’t appear in an opinion, the Court can really harm women,” Julie Rikelman, the senior director for litigation at the Center for Reproductive Rights, told Vox.
Any of these cases could be the one that guts Roe
Planned Parenthood has identified the 13 cases below as potential challenges to Roe v. Wade. Each concerns a state or federal abortion restriction.
Reproductive rights advocates say that because of the complexities of each case, it’s impossible to tell which might make it to the Supreme Court first. And, of course, a new case could come up at any time.
But the court will be taking cases for the 2018-19 session through January, said Helene Krasnoff, vice president of public policy, litigation, and law for the Planned Parenthood Federation of America. If the court takes an abortion case this term, it would issue a decision by the summer of 2019. “This could become a reality very, very soon,” she said.
June Medical Services et al. v. James Caldwell
Abortion providers are challenging a 2014 Louisiana law that would require physicians providing abortions to have admitting privileges at a nearby hospital. Such laws do little to protect patients’ health, and are typically passed in an attempt to shut down abortion providers, who often have difficulty finding a hospital willing to grant them admitting privileges.
In 2016, the Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that a similar law in Texas was unconstitutional, because it placed an undue burden on the right to access an abortion established in Roe. But a court minus Justice Anthony Kennedy, plus Brett Kavanaugh might make a different decision — and could use the case as an opportunity to revisit Roe.
Right now the case is awaiting a decision in the Fifth Circuit Court of Appeals.
Whole Woman’s Health et al. v. Ken Paxton et al.
In this case, providers are challenging a 2017 Texas law banning a second-trimester abortion procedure called dilation and evacuation, in which the cervix is dilated and the fetus removed by suction. Opponents of the law say that banning dilation and evacuation, the safest and most common method of abortion after 15 weeks’ gestation, would put women at risk and place an undue burden on their right to get an abortion.
The case is awaiting arguments in the Fifth Circuit Court of Appeals.
EMW Women’s Surgical Center et al. v. Andrew Beshear et al.
EMW Women’s Surgical Center, the only licensed abortion provider in Kentucky, is suing to block a 2017 state law that requires doctors to administer an ultrasound to pregnant patients prior to an abortion. Doctors are also required to show and describe the ultrasound to the patient, and to play the sound of the fetal heartbeat if it can be detected. Opponents of the law say it is medically unnecessary and could cause patients trauma, especially if they became pregnant as a result of sexual assault.
The case is waiting for a decision in the Sixth Circuit Court of Appeals.
Preterm-Cleveland et al. v. Lance Himes et al.
Planned Parenthood affiliates and other providers are challenging a 2017 Ohio law that would ban abortion if a doctor has any reason to believe the fetus has Down syndrome. The law contains no exception for preserving the life or health of the mother, and opponents say it violates Roe by restricting abortion before a fetus is viable outside the womb.
Briefing in the case is ongoing in the Sixth Circuit Court of Appeals.
Planned Parenthood of Indiana & Kentucky v. Commissioner of the Indiana State Department of Health et al.
Planned Parenthood of Indiana & Kentucky is suing to block a 2016 Indiana law that prohibits doctors from performing abortions if the patient is seeking the procedure because of the fetus’s sex, race, disability or potential diagnosis of disability. The law, signed by then-Gov. Mike Pence, also included other provisions such as a mandate that miscarried or aborted fetuses be buried or cremated, and was so restrictive that it disturbed even Republicans in the state Legislature.
Critics said that by banning abortion because of fetal abnormality, the law could keep patients from being honest with their doctors, or force them to carry dangerous pregnancies to term.
A district court blocked the law in 2017, and the Seventh Circuit Court of Appeals upheld the decision. But the state of Indiana could decide to appeal to the Supreme Court.
Planned Parenthood of Indiana & Kentucky et al. v. Commissioner of the Indiana State Department of Health et al.
In a separate challenge to the same Indiana law, Planned Parenthood argued that a provision requiring an 18-hour waiting period between a state-mandated ultrasound and the abortion procedure placed an undue burden on patients.
The state of Indiana has filed a petition for a rehearing of the case with the Seventh Circuit Court of Appeals.
Planned Parenthood of Indiana & Kentucky v. Adams et al.
Planned Parenthood is challenging a 2017 Indiana law governing parental consent for minors seeking abortions. Under the law, parents must show proof of their identity and relationship to the minor when providing consent, and the law would allow judges to notify the minor’s parents that she was seeking an abortion. Critics of parental consent laws, which are in effect in many states, argue that they can leave pregnant minors vulnerable to abuse. Opponents of the Indiana law in particular argue that requiring parental identification could block abortions for minors whose parents don’t have valid ID.
The case is awaiting a decision in the Seventh Circuit Court of Appeals.
Comprehensive Health of Planned Parenthood Great Plains et al. v. Williams et al.
Planned Parenthood has challenged Missouri requirements that abortion providers have hospital admitting privileges and that abortion facilities conform to ambulatory surgical center (ASC) standards. According to the Guttmacher Institute, ambulatory surgery centers typically perform riskier procedures than abortion clinics, and laws applying ASC standards to abortion facilities are generally aimed at reducing abortion access, not improving patient care. Planned Parenthood filed suit to challenge the Missouri requirements after the Supreme Court found in Whole Woman’s Health v. Hellerstedt that similar requirements in Texas were unconstitutional.
The case is awaiting a decision in the Eighth Circuit Court of Appeals.
Frederick W. Hopkins v. Larry Jegley et al.
A provider is challenging four abortion restrictions passed in Arkansas in 2017, including a ban on dilation and evacuation and a measure requiring doctors to request a patient’s “entire pregnancy history” to be sure she is not seeking a sex-selective abortion.
The case is awaiting argument in the Eighth Circuit.
Planned Parenthood Arkansas & Eastern Oklahoma et al. v. Larry Jegley et al.
Planned Parenthood has challenged a 2015 Arkansas law requiring that physicians dispensing medication abortion have a contract with another physician who has hospital admitting privileges. A district court found that the requirement had little benefit for patients, since Planned Parenthood already had a thorough protocol in place to administer medication abortions and treat any complications that arose. The state of Arkansas appealed the decision.
The case is awaiting briefing and argument in the Eighth Circuit.
Reproductive Health Services v. Marshall
An abortion provider is suing to block a 2014 Alabama law changing the process by which minors can receive an exemption from parental notification requirements. Most state parental notification laws allow minors to forego parental notification of an abortion if they can get permission from a judge, a process known as judicial bypass.
The Alabama law would make the process of seeking such a bypass much more involved: it would require the judge to notify the county district attorney’s office, appoint a legal guardian for the fetus, and, in some cases, allow the minor’s parents to be part of bypass proceedings. The guardian for the fetus could cross-examine the pregnant minor, call witnesses to testify against her, and appeal the judge’s decision.
“It is terrifying to minors who seek a bypass that the decision about whether she can have an abortion — one that will literally change the course of her life — is in the hands of a stranger,” the lawsuit states. “This fear will be significantly increased due to the Act’s provisions.”
The case is currently awaiting a decision in the Eleventh Circuit Court of Appeals.
West Alabama Women’s Center v. Miller
West Alabama Women’s Center, an abortion provider in Tuscaloosa, Ala., is challenging a 2016 ban on dilation and evacuation.
On August 22, the Eleventh Circuit Court of Appeals sided with the district court, which had ruled against the law. The state of Alabama can now decide whether to appeal the case to the Supreme Court.
Rochelle Garza et al. v. Alex Azar, II et al.
The ACLU has filed a class-action suit on behalf of pregnant, unauthorized immigrant minors in the custody of the Office of Refugee Resettlement, part of the Department of Health and Human Services. The plaintiffs are seeking to block what they say is an ORR policy of denying minors access to abortion services.
The suit comes after the cases of Jane Doe and other pregnant minors last year, who were initially prohibited from getting abortions while in ORR care. Last year, in a dissenting opinion in Garza v. Hargan, Brett Kavanaugh argued that, rather than allowing Doe to get an abortion while under ORR care, the government would be within its rights to make her wait until she could be released to an immigration sponsor. It’s the only abortion case on which Kavanaugh has ruled.
Oral arguments in the DC Circuit Court of Appeals are scheduled for September 26.