It’s the worst-case scenario that reproductive rights groups have feared for years: A solidly conservative Supreme Court that could chip away or knock down the 1973 Roe v. Wade decision that legalized abortion nationwide.
The Supreme Court will almost certainly turn more conservative once the Republican-controlled Senate confirms Judge Amy Coney Barrett, President Donald Trump’s pick to replace Justice Ruth Bader Ginsburg who died on September 18.
The 48-year-old Barrett has a record of opposing abortion rights and her confirmation could shift the ideological balance of the Supreme Court for decades.
“There is no question that the risk of Roe being overturned is probably the highest it’s been in 25 years,” said Helene Krasnoff, vice president of public policy litigation for Planned Parenthood.
Insider reviewed 18 abortion cases that both sides of the abortion debate are watching closely as the fight for the future of the Supreme Court kicks into high gear.
Much of it anyway, as Republicans eye the real possibility of a 6-3 conservative majority Supreme Court that could rule in their favor in a myriad of anti-abortion cases making their way through the lower courts.
Roe, the 1973 Supreme Court decision that legalized abortion nationwide, is facing its biggest threat in decades following the death of Justice Ruth Bader Ginsburg. She’s about to be replaced by Judge Amy Coney Barrett, President Donald Trump’s conservative pick.
Trump announced Barrett’s nomination on Saturday. The 48-year old has a judicial record against abortion and can almost be guaranteed a Senate confirmation — possibly before Election Day — that would allow Republicans to solidify the high court’s conservative bent.
It’s the worst possible outcome for reproductive rights groups that are already panicking about the near certainty that safe abortions could become harder to access for millions, especially poor women.
“There is no question that the risk of Roe being overturned is probably the highest it’s been in 25 years,” said Helene Krasnoff, vice president of public policy litigation for the reproductive health organization Planned Parenthood.
A ‘turning point’ for the anti-abortion movement
More than a dozen cases, many filed by conservative states, could soon reach the conservative Supreme Court.
If the options go the way of Republicans they could chip away at abortion’s legality, including by blocking Planned Parenthood from getting government healthcare funds, limiting how far into pregnancy abortions can be done, the kinds of surgical methods doctors can use, or placing restrictive rules on abortion providers. Others ban abortions on the basis of fetal race, sex, or disability.
These are all goals that have been sought by conservatives for years but became a real possibility once Trump became president and more so now that he’s poised to make his third lifetime appointment to the high court, after picking Neil Gorsuch in 2017 and Brett Kavanaugh in 2018.
It’s a “turning point” for the anti-abortion movement, Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List said of Trump’s chance to add a sixth conservative to the court. The organization wields a great deal of influence on Trump and his administration.
Since Trump took the White House, hailed by conservatives as the “most pro-life president” in US history, several red states, including Georgia, Ohio, Kentucky, Missouri, and Mississippi have passed abortion restrictions that are now tied up in legal challenges.
The Supreme Court only takes up a small subset of requests to hear cases. But right now, many of the legal challenges to abortion laws across the country could reach the high court for a final verdict or cause the justices to look more broadly at Roe. If the Supreme Court were to overturn Roe, states would have to decide whether to keep abortion legal within their borders.
Reproductive rights groups have been sounding the alarm for years as several red states have regulated abortion clinics out of business. Even if the Supreme Court doesn’t overturn Roe, it can still place strict limits on abortions.
“The court doesn’t have to overrule Roe to make abortion inaccessible,” said Noel Leon, an attorney at the National Women’s Law Center.
The Supreme Court is already considering a handful of abortion cases, and others aren’t that far off from reaching the high court. Insider reviewed 18 cases being closely watched by both sides of the abortion debate, as the fight for the future of the highest court heats up. Three of those cases are close to going before the Supreme Court, which requires the consent of four justices for a case to land on the docket.
Justice Ruth Bader Ginsburg was honored at the Fourth Annual Berggruen Prize Gala in New York on December 16, 2019. The feminist icon’s death has made way for a conservative justice to replace her on the Supreme Court and possibly chip away at Roe v. Wade.
Photo by Ilya S. Savenok/Getty Images for Berggruen Institute
What it’s about: The Trump administration wants the Supreme Court to block a ruling by a federal district court in Maryland that allows doctors to meet with patients over the phone or video conference to prescribe abortion pills that can be delivered by mail. Remote abortions are allowed during the coronavirus pandemic as many patients remain at home to reduce their risk of getting the disease.
Where it stands: A district judge temporarily blocked the Food and Drug Administration from requiring healthcare providers to see patients in person to prescribe abortion pills. Doctor groups filed a lawsuit for the court to block the FDA’s move that would require that abortion drugs be offered only under the supervision of a certified healthcare provider in a hospital or clinic and after a patient certifies that she’s been counseled about the risks of the drug being prescribed.
Timeline: The Supreme Court could hand down a decision any time now.
What it’s about: The case, brought by an abortion clinic and its patients, challenges a Mississippi law that would have imposed a ban beginning in 2018 on abortions after 15 weeks of pregnancy. Roe allows the procedure up to the point of fetal viability, which doctors place at about 24 weeks into a pregnancy.
Where it stands: The law was blocked by the lower courts early this year, and the state appealed the case to the Supreme Court.
Timeline: Supreme Court justices were all set to meet about the case on September 29, but they took it off the calendar just a week earlier — a few days after Ginsburg’s death. It’s unclear how soon they could meet about whether to take up the case.
What it’s about: Through a 2018 executive order, South Carolina’s Republican Gov. Henry McMaster tried to block Planned Parenthood from getting money from Medicaid, the program that offers government-funded health insurance to the poor. Planned Parenthood and a patient sued, arguing that Medicaid allows patients to get healthcare from any provider willing to offer the procedure.
Where it stands: A federal district judge and the 4th Circuit Court of Appeals based in Richmond, Virginia, blocked the move from taking effect.
Timeline: The Supreme court justices are scheduled to meet about the case on October 9. They’re specifically being asked to consider whether patients can sue against those kinds of regulations.
What it’s about: The Trump administration wrote new rules in February 2019 that prohibit medical providers who receive money from a family planning program known as Title X from directly referring patients for abortions. Planned Parenthood withdrew from the program and sued.
Status: Federal appeals courts have ruled differently on the case, with the San Francisco-based 9th Circuit allowing the rules nationwide but the 4th Circuit blocking them in Maryland on September 3. The split decisions in the appeals courts could increase the likelihood that the Supreme Court would take up the issue.
On the basis of Down syndrome
Case: Planned Parenthood of Southwest Ohio v. Amy Acton What it’s about: Planned Parenthood is challenging a 2017 Ohio law that makes it illegal for doctors to perform abortions if they know a patient is seeking one because of a prenatal diagnosis of the genetic disorder Down syndrome.
Status: Judge Timothy Black of the US District Court for the Southern District of Ohio blocked the law in 2018, and now the case, which has the support of Trump’s Department of Justice, is waiting on a decision from the Cincinnati-based 6th Circuit Court of Appeals. After a verdict, the could be appealed to the Supreme Court by the losing side.
Anti-abortion activists gather outside the Supreme Court in Washington.
Reuters
What it’s about: Reproductive rights groups, led by the American Civil Liberties Union, challenged a 2019 Georgia law that banned abortion after six weeks, which is often before many women know they’re pregnant. Abortion opponents call those statutes “heartbeat laws,” referring the time when cardiac activity can be detected.
Status: A district court blocked the law and the state appealed it to the Atlanta-based 11th Circuit Court of Appeals on August 11, where a hearing has not yet been set.
Case: Amy Bryant v. Jim Woodall What it’s about: Abortion rights groups challenged a North Carolina law that banned abortions after 20 weeks into a pregnancy. While the law had been on the books for decades, state lawmakers tried to tighten its exemptions in 2015.
Status: A federal judge struck down the ban in 2019 and state officials appealed it to the 4th Circuit. Oral arguments have not yet been scheduled.
What it’s about: Reproductive rights groups challenged a 2019 Missouri law that bans abortion after eight weeks. The law was written in such a way that other bans would take effect if one failed. So if the eight-week ban were to be found unconstitutional, a 14-week ban would take effect, and subsequently an 18-week ban, and so on.
The law also banned abortions on the basis of race, sex, or a prenatal Down syndrome diagnosis.
Status: A federal judge blocked the time and reason bans in the law, and Missouri appealed it to the St. Louis-based 8th Circuit Court US Court of Appeals. Oral arguments took place through video conference on September 24.
Planned Parenthood runs the only abortion clinic in Missouri.
AP Photo/Jeff Roberson
Separate bills for abortion coverage
Case: Planned Parenthood of Maryland, Inc. v. Azar
What it’s about: Under Trump administration rules issued in 2019, health insurers that participate in the Affordable Care Act — former President Barack Obama’s signature healthcare law — have to send different premium bills to customers to separate abortion from other types of coverage. ACA plans get government subsidies and therefore aren’t supposed to pay for abortions, but four states mandate health insurers do so.
Planned Parenthood and four people sued over the Trump rules, saying the added step would dissuade insurers from covering abortions.
Status: By 2020, three federal district courts had struck down the rule and the Trump administration has appealed two decisions to the 4th Circuit Court of Appeals.
Anti-abortion activists participate in the “March for Life,” an annual event to mourn the anniversary of Roe v. Wade.
Saul Loeb/AFP via Getty Images
Banning dilation and evacuation in Texas and Arkansas
What it’s about: A 2017 Texas law banned an abortion method known as dilation and evacuation, in which forceps and a vacuum are used to end a pregnancy. It’s the most common type of abortion used in the second trimester.
Status: A district court blocked the law. An appeals court then held off on issuing a ruling while it waited for a decision on another similar case before the Supreme Court. The high court eventually ruled in favor of abortion rights groups. Texas officials on August 25 then appealed the dilation and evacuation case to the New Orleans-based 5th Circuit to have the full bench re-hear it.
What it’s about: Reproductive rights groups have challenged four abortion restrictions in Arkansas, including a 2017 ban on abortions by dilation and evacuation.
Status: A district court blocked the law, and Arkansas officials appealed it to the 8th Circuit. A three-judge panel on the appeals court removed the block on the law. Reproductive rights groups then filed a petition on August 21 to have the case re-heard before a full panel of judges.
Supreme Court building.
Reuters
Burying or cremating fetal tissue from abortions
Case:Whole Woman’s Health v. Charles Smith
What it’s about: Reproductive rights groups challenged a 2017 law in Texas that required tissue obtained from an abortion to be buried or cremated. The plaintiffs argued that it was impossible for women who completed their abortions at home using the prescribed pill to follow that rule. They argued that the rule instead shamed the women for their decisions to terminate their pregnancies.
Status: A district court in 2018 blocked the law from taking effect. The state then escalated its challenge to the 5th Circuit Court of Appeals, which decided to hold off on a ruling until the Supreme Court decided another case. The Supreme Court case upheld abortion rights and the parties are waiting to see how the 5th Circuit rules in the case.
Anti-abortion protesters outside the Supreme Court.
AP Photo/Patrick Semansky
What it’s about: The ACLU and an abortion clinic challenged a 2014 Alabama law that made it harder for minors to seeks waivers that would permit them to get abortions without the consent of their parents or guardians. The law would have allowed a judge to appoint a lawyer to represent the fetus and for parents of the pregnant girl to get involved in the proceedings.
Status: The Alabama law was struck down by a district court in 2017. The state appealed it to the 11th Circuit, which has not yet issued a ruling.
What it’s about: Reproductive rights groups challenged a similar 2017 Indiana law that requires minors to get parental consent for abortions.
Status: The case escalated to the Supreme Court after the Chicago-based 7th Circuit US Court of Appeals blocked the law. The Supreme Court wouldn’t take up the case, telling the appeals court to first reconsider its decision to halt the law. In August, Indiana officials asked the full bench of the 7th Circuit to hear the case.
U.S. Supreme Court Police guard the building during a protest against anti-abortion legislation at the U.S. Supreme Court in Washington
Reuters
What it’s about: A Kentucky law required that abortion clinics have agreements with local hospitals to accept patients in case of complications from an abortion. The law also required abortion providers to have contracts with ambulances to transport patients facing complications to hospitals. Abortion clinics typically don’t have such agreements because reported complications are rare, and when they do happen a patient is more likely to be at home. The law is several decades old — and wasn’t being enforced — but clinics sued after the state revoked their medical licenses in 2017 for lack of those connections to hospitals and ambulances.
Status: A district court struck down the law and it was appealed to the 6th Circuit, which hasn’t issued a ruling yet. The law is similar to two decisions that have already been struck down by the Supreme Court.
An activist in Dayton, Ohio, seen holding a placard that says keep clinics open during the protest
Megan Jelinger/SOPA Images/LightRocket via Getty Images
Restrictions on abortion timeline and reason in Arkansas and Tennessee
What it’s about: A 2019 Arkansas law banned abortion after 18 weeks and required that the procedure be only performed by board-certified or board-eligible OB-GYNs. The law also made it illegal for providers to conduct an abortion if they know that a woman is asking for one because of a fetal diagnosis of Down syndrome. The law was challenged by the ACLU and Planned Parenthood.
Status: A district court blocked the law and the state appealed it to the 8th Circuit. Oral arguments were held over video conference on September 23 due to COVID-19 restrictions on in-person gatherings.
What it’s about: Reproductive rights groups challenged a 2020 Tennessee law that banned abortions at different points in the pregnancy. It also prohibited abortions on the basis of race, sex, and prenatal diagnosis of Down syndrome.
Status: A district court blocked the law and the state appealed it to the 6th Circuit on August 21.
U.S. Supreme Court justices hear a major abortion case on the legality of a Republican-backed Louisiana law that imposes restrictions on abortion doctors, on Capitol Hill in Washington
Reuters
What it’s about: Planned Parenthood challenged a 2018 Indiana law that required abortion providers to report all complications associated with the procedures under their care. The law required providers to file a list of complications annually, including details on whether women suffered psychological or emotional problems after an abortion.
Status: A federal judge blocked the law last year, saying its requirements were too vague. The state then appealed the decision to the 7th Circuit on September 8.
