Could Roe v Wade be overturned and abortion outlawed in the US? | The Guardian

By Molly Redden

Who was Norma McCorvey?
Norma McCorvey is the real name of the woman known as “Jane Roe” in the landmark US supreme court case on abortion rights, Roe v Wade. The 1973 case established a right for US women to have abortions. McCorvey became the plaintiff after she met with two lawyers looking for a test case to challenge Texas’s abortion ban. That was in 1970. At the time, McCorvey was pregnant, unwed, unemployed and unable to obtain an abortion legally or otherwise.

McCorvey never had an abortion. Her case, which proceeded largely without her involvement, took too long to resolve, and she gave birth to a child that she placed for adoption. Several years after the ruling, she publicly revealed her identity and became involved in the pro-abortion rights movement. But after a conversion to Christianity, she became an anti-abortion rights activist. Before she died last week, McCorvey had said that it was her wish to see Roe v Wade overturned in her lifetime.

Is Roe v Wade actually in danger?
It depends on what you mean. Many legal experts are sceptical that the US supreme court would overturn it any time soon. For starters, it’s difficult to bring a case before the supreme court that would threaten the ruling, because those cases almost always founder in a lower court. And even if Donald Trump’s supreme court nominee opposes abortion rights, the current makeup of the court is such that there aren’t enough votes to overturn Roe.

An alternative strategy is to poke so many holes in Roe that its protections for abortion rights become weakened. At this, anti-abortion activists have been very successful. Since Roe, some states have enacted laws requiring women seeking an abortion to attend anti-abortion counselling or to wait 24 hours or more for the procedure, laws extensively regulating abortion after 20 weeks, and laws blocking public funding for abortion. And they have picked up speed in recent years. Since 2010, lawmakers have placed 338 new restrictions on abortion.

Will states continue to pass new anti-abortion laws?
Many states are controlled by Republicans who oppose abortion rights, so they will certainly try. You might have heard about a proposal in the state of Oklahoma calling for women to require permission for an abortion from the man who impregnated her. One legislator justified the bill by saying pregnant women’s bodies are not their own because they’re “hosts”. It’s outrageous, but not a huge threat to abortion rights – the jurisprudence is pretty clear that you can’t require an adult woman to get permission before having an abortion.

What does threaten abortion rights are laws that chip away at Roe v Wade. Several states are attempting to ban a common method of second-trimester abortion on the basis that it’s cruel to the foetus. There are efforts to regulate how abortion clinics dispose of medical waste, which the clinics say are just attempts to shut them down with unnecessary rules and expenses. There is also a push to give women scientifically untrue information that it is possible to “reverse” an abortion performed with medication.

Have all these laws really made it harder to get an abortion?
It’s hard to say. There is evidence that shutting down clinics can cause a drop in the abortion rate. In Texas, after a 2013 clinic regulation forced about 20 clinics to close, there was a 50% drop in abortions in areas where the distance to the nearest clinics suddenly increased by more than 100 miles. Last June, the US supreme court ruled that the regulation had no medical justification and was unconstitutional. But in many places, the damage had already been done.

Making it harder for women to pay for abortions also seems to have an impact. Since 1976, when Congress blocked Medicaid – insurance for those on low-income – from paying for abortions, more than a million women have been blocked from access. A new tactic is to try to ban abortion coverage in state insurance marketplaces. Congress is exploring ways to replicate those restrictions nationally.

Then there are laws that place extra restrictions on abortion – a waiting period, or a counselling requirement, or a ban on abortion after a certain number of weeks. The research isn’t definitive, but people who study abortion restrictions are pretty sure that these kinds of laws don’t prevent women from having abortions – they just make it more time-consuming and expensive. The exception may be bans on abortion after a certain week of pregnancy, which studies show can force women to carry a pregnancy to term.

What could change under Trump?
Republicans in Congress have plans to pass a national ban on abortion after 20 weeks, to make it harder for a future Congress to restore public funding for abortion, and to curtail insurance coverage for abortion. It’s not clear if they will overcome opposition in the Senate, where Democrats retain enough votes to filibuster legislation.

But many public health advocates fear that the Trump administration will scale back the availability of contraception – which seems to have helped bring the US abortion rate to historic lows. Obamacare requires insurance companies to cover contraception with no copay, and the share of privately insured women who were able to obtain contraception at no extra cost quadrupled. Trump and Congress intend to repeal Obamacare – and so far, none of the replacement models have the same coverage requirements. At the same time, Republicans are attempting to strip public funding from Planned Parenthood, a move that health experts warn could blow a hole in the family-planning public safety net.

Source: The Guardian


Supreme Court to Hear Texas Abortion Law Case | New York Times

AbortionLegalBy Adam Liptak

WASHINGTON — The Supreme Court on Friday agreed to hear its first major abortion case since 2007, one that has the potential to affect millions of women and to revise the constitutional principles governing abortion rights.

The court’s decision will probably arrive in late June, as the presidential campaign enters its final stretch, thrusting the divisive issue of abortion to the forefront of public debate. Other major rulings — on affirmative action, public unions, contraception coverage and possibly immigration — are also expected to land around then.

But it is the new abortion case, however it is decided, that is likely to produce the term’s most consequential and legally significant decision. Many states have been enacting restrictions that test the limits of the constitutional right to abortion established in 1973 in Roe v. Wade, and a ruling in the new case, from Texas, will enunciate principles that will apply in all of them.

The Casey decision said states may not place undue burdens on the constitutional right to abortion before fetal viability. Undue burdens, it said, included “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Justice Anthony M. Kennedy helped write the controlling opinion in Casey, and his vote will almost certainly be crucial in the new case, Whole Woman’s Health v. Cole, No. 15-274. The future of abortion rights in the United States probably rests almost entirely in his hands, given the deadlock on the court between conservatives and liberals.

The case is a challenge to a Texas law that would leave the state with about 10 abortion clinics, down from more than 40. Such a change, the abortion providers who are plaintiffs in the case told the justices, would have a vast practical impact.

“Texas is the second-most-populous state in the nation — home to 5.4 million women of reproductive age,” they wrote in their brief urging the court to hear the case. “More than 60,000 of those women choose to have an abortion each year.”

The case concerns two parts of a state law that imposes strict requirementson abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

Officials in Texas said that the contested provisions were needed to protect women’s health. Abortion providers responded that the regulations were expensive, unnecessary and intended to put many of them out of business.

The measures were modest and sensible, Ken Paxton, Texas’ attorney general, said in a statement on Friday

“The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities,” Mr. Paxton said. “The advancement of the abortion industry’s bottom line shouldn’t take precedence over women’s health.

Nancy Northup, president of the Center for Reproductive Rights, which brought the Texas challenge, said officials in Texas had used “deceptive laws and regulatory red tape” to block access to abortion.

“Playing politics with women’s health isn’t just wrong,” she said in a statement. “It’s dangerous for many women who will have no safe and legal options left where they live, and may be forced to take matters into their own hands.”

Parts of the law not at issue before the Supreme Court have already caused about half of the state’s 41 abortion clinics to close. If the contested provisions take effect, the challengers’ brief said, the number of clinics would again be halved.Amy Hagstrom Miller, president of Whole Woman’s Health, the lead plaintiff, said that “would have devastating effects on women and families around the state.”

The remaining clinics would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.

“There would be no licensed abortion facilities west of San Antonio,” the challengers’ brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.”

In urging the Supreme Court to decline the case, Mr. Paxton quoted from an earlier opinion. The justices, Mr. Paxton said, should not turn themselves into “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

The lower courts are divided over whether they should accept lawmakers’ assertions about the health benefits of abortion restrictions at face value or investigate to determine whether the assertions are backed by evidence.

In June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, using the more deferential approach. A panel of the court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

The court said women in West Texas could obtain abortions in New Mexico, a ruling at odds with one from a different panel of the same courtthat said Mississippi could not rely on out-of-state abortion clinics in defending a law that would have shut down the state’s only clinic.

The appeals court declined to grant the challengers a stay, but the Supreme Court temporarily blocked the ruling later that month pending its own decision in the case. The vote was 5 to 4, with Justice Kennedy joining the court’s liberal wing to form a majority. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. voted to deny the stay.

Source: New York Times