The Alabama attorney general officially asked the Supreme Court on Thursday to review a lower court’s decision that a state law prohibiting a common method used for second-trimester abortions is unconstitutional.
The lawsuit against Alabama’s dilation and evacuation (D&E) ban is the second anti-abortion case before the Supreme Court. There are at least 11 other cases at the appeals level, meaning more anti-abortion cases can land on the Supreme Court’s 2019 docket.
This spells bad news for the future of Roe v. Wade. Given that the Supreme Court moved further right this year, the constitutional right to abortion before viability, scientifically determined to be at 24 to 28 weeks, afforded by Roe and reaffirmed by past decisions is at risk.
But the American Civil Liberties Union (ACLU) remains unfazed because lower courts continue to uphold a patient’s right to a safe, doctor-recommended, and common (95 percent of second-trimester abortions) method. Indeed, similar D&E bans in Kansas, Oklahoma, Louisiana, Texas, and Arkansas have all been blocked when challenged in court.
“The courts have unanimously held that these laws are unconstitutional. Alabama’s petition is nothing more than a plea for the Supreme Court to turn its back on women’s rights and health,” Andrew Beck, senior staff attorney at the ACLU Reproductive Freedom Project, said in a press statement.
While Alabama Attorney General Steve Marshall asked the Supreme Court to review the case, it doesn’t mean justices will actually do so next year. The ACLU already said it doesn’t suspect SCOTUS will take up an Indiana case looking to outlaw abortion if a patient gets one because of, for example, the fetus’ potential diagnosis of a disability. The Supreme Court will conference January 4 and the public will learn sometime thereafter if it takes up the case.
“We think it is extremely unlikely that the court will take up the case,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project, in a press call on Monday.
“It flies in the face of Roe, which says you can’t ban abortion before viability and of course allowing a state to pry into the reasons a woman decides to have an abortion strikes at the very heart of a woman’s right to make this very private decision for herself,” she added.
Advocates on the call also warned that anti-abortion cases that don’t directly challenge abortion precedents on viability are also concerning. Julie Rikelman, senior director of litigation at the Center for Reproductive Rights, flagged a legal challenge against a Louisiana law requiring abortion providers to get admitting privileges at nearby hospitals. The Fifth Circuit Court of Appeals recently upheld the law even though it was similar to a Texas law the Supreme Court struck down when it last took up an abortion case.
The Center for Reproductive Rights, which is representing the plaintiffs in the lawsuit, asked for all Fifth Circuit judges to review the three-judge panel decision, adding plaintiffs “will look at all legal options including going to the Supreme Court” should the court deny en banc review.
Recently, there was some chatter that because Chief Justice John Roberts and newly-confirmed Justice Brett Kavanaugh sided with the Supreme Court’s more liberal judges and decided not to take up a Medicaid case involving Planned Parenthood earlier this month, it means justices won’t hobble or overturn Roe. Sen. Susan Collins (R-ME), for one, said she felt “vindication” when the Supreme Court sided with Planned Parenthood. But Planned Parenthood doesn’t buy that narrative.
“The Medicaid case is not an abortion case… don’t read anything into [the] decision,” said Rachel Sussman, national director of state policy and advocacy at Planned Parenthood Federation of America, in that same press call.