The movement has a lengthy list of potential cases that could present a more direct threat to Roe v. Wade, if taken up by the Supreme Court.
To anti-abortion campaigners, a stinging and unexpected setback was given by Monday’s Supreme Court decision over a Louisiana statute. But maybe not for long.
The anti-abortion movement has a long pipeline of new cases that could show a more direct challenge to Roe v. Wade, the 1973 ruling which established federal protection for abortion, if taken up by the Supreme Court. As of June, according to advocates at the Planned Parenthood Federation of America, there were at least 16 abortion lawsuits in U.S. appeals courts, the last step before the Supreme Court.
The case of Louisiana, over a law in 2014 allowing doctors conducting abortions to have privileges accepted in local hospitals, was never envisaged as a way to upend Roe v. Wade. It was one small piece of a larger plan to limit abortion by means of myriad state laws that could be brought together to chip off overall access.
The political agenda has also sharply reduced access to abortion in large parts of the South and Midwest. Then only one abortion clinic each left at least five states: Mississippi, Missouri, North Dakota, South Dakota then West Virginia.
Monday’s decision, the first big case of abortion since President Trump changed the balance of power of the court to the right, also revealed for the first time that Justices Neil M. Gorsuch and Brett M. Kavanaugh were siding with the anti-abortion cause, as long-time advocates expected. The decision would only further drive social conservatives to re-elect Mr. Trump, so that he could have a third chance to appoint a court in order to rule on more important cases of abortion making their way up to the Supreme Court. Many of those legislation would have far greater breadth than in the case of Louisiana.
While legal challenges to abortion still take years to reach the Supreme Court, states have continued to add to the list, in recent years, passing scores of new laws. Tennessee passed a bill this month that would ban abortions with no exceptions for rape or incest as early as six weeks of pregnancy.
The president of the anti-abortion organization Susan B. Anthony List called Monday’s decision a “bitter disappointment,” but looking forward to the November election, he thanked Mr. Trump for nominating Justices Gorsuch and Kavanaugh, who dissented in the ruling.
“It is imperative that we re-elect President Trump and our pro-life majority in the U.S. Senate so we can further restore the judiciary, most especially the Supreme Court,” the group’s president, Marjorie Dannenfelser, said. “President Trump, assisted by the pro-life Senate majority, is keeping his promise to appoint constitutionalist Supreme Court justices and other federal judges.
The decision was the best result that advocates may have hoped for in spite of the court’s latest conservative bent for the abortion-rights movement, which has encountered a series of disappointments in recent years. Decision Monday requires the remaining three abortion clinics in Louisiana to remain open.
Abortion-rights activists said the victory would protect access for a disproportionately black and minority clientele. As per state statistics about 8,000 abortions were performed in Louisiana in 2018. There are women of colour, more than two thirds of abortion patients.
“It’s crazy times, and it’s a wonderful good thing,” said Kathaleen Pittman, the director of the Hope Medical Group for Women, the Shreveport-based clinic at the center of the case. On Monday morning, the clinic was seeing patients, and she described the mood after the ruling as “absolute giddiness.”
November is a significant juncture for the abortion fight. Mr. Trump’s re-election campaign would test the strength of his popularity among white evangelicals and Catholics who are praising the president for how much he has pursued anti-abortion policies.
Control of state legislatures is on the table as well. According to the National Conference of State Legislatures, nearly 80 percent of state seats are up for election this year. Whichever party gets majority control would have enormous power for years to come to reshape the legal environment for the abortion.
The anti-abortion movement has made considerable strides in state legislatures across the country which in recent years has helped them to pass a flurry of bans. In the abortion-rights movement, reclaiming power at the state level would take extensive grass-roots effort.
For conservatives, Monday’s verdict is a political opportunity to energize Mr. Trump’s conservative religious base at a time when he trails former vice president Joseph R. Biden Jr. in six key states, including places like Michigan and Pennsylvania where white Catholics may be significant swing voters. The White House press secretary, Kayleigh McEnany, has called the decision “unfortunate.”
“Instead of valuing fundamental democratic principles, unelected justices have intruded on the sovereign prerogatives of state governments by imposing their own policy preference in favor of abortion to override legitimate abortion safety regulations,” she said in a statement.
“This is great news, but the battle continues, folks,” Ilyse Hogue, president of NARAL Pro-Choice America, an abortion rights group, wrote on Twitter. “As long as Kavanaugh is on the bench, our rights are on the line—and we need your help to flip the Senate.”
Lawyers for the clinic argued that their win was resounding as it involved the decision of the Supreme Court on a case concerning the recognition of rights in their favor for the second time in four years. The law was almost identical with a Texas law, large parts of which were struck down in 2016 by the Supreme Court, and in his opinion, Justice Stephen G. Breyer said as much. In Monday’s decision only Chief Justice John G. Roberts Jr., who sided in the 2016 case against the abortion-rights advocates, offered his professional support.
“Two strikes, you’re out,” said T.J. Tu, senior counsel at the Center for Reproductive Rights and a lawyer for the clinic. The message, he said, was that “states should really knock this off.”
But the decision was narrow in many ways — setting to rest only one of the legal tactics used by the anti-abortion lobby to limit access. Legislatures passed scores of anti-abortion laws only last year, especially in red states.
Nor is it a given that the 5-to-4 ruling means that on abortion issues, Chief Justice Roberts will still side with the liberal wing of the court. While he was the deciding vote for the ruling of Monday, in his concurrent opinion, the chief justice stated that he concluded that the 2016 precedent based on Monday’s decision was “wrongly decided.”
Lawyers for the Louisiana clinic acknowledged that it was not on their side that Chief Justice Roberts had come down decisively.
“The opinion did muddy the waters a little bit,” said Julie Rikelman, a lawyer at the Center for Reproductive Rights who argued Monday’s case before the Supreme Court on behalf of the clinic. “It will lead to more litigation, not less.”
While the toughest bans — those banning abortion after a fetal heartbeat has been detected — have received tremendous scrutiny, Ms. Rikelman said she did not expect the Supreme Court to take them up. More likely, she said, would be any number of instances that diminish piece by piece access. The next big case may be over-banning of the dilation and evacuation procedure usual in the second trimester of pregnancy, or abortion based on a diagnosis of Down syndrome.
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