Anti-abortion groups are asking the Supreme Court to overturn Roe v. Wade and uphold an anti-choice law signed by former Indiana governor and current Vice President Mike Pence. But not everyone in the “pro-life” movement will admit it.
There appears to be a strategic disagreement about whether to explicitly say the lawsuit conflicts with precedent created in Roe, a 1973 decision established the right to pre-viability abortion, and (mostly) reaffirmed in 1992 with Planned Parenthood v. Casey. ThinkProgress reviewed legal briefs filed in November by various anti-abortion groups not party to the lawsuit and discovered the internal division.
For context, the Indiana law — banning abortion due to race, sex, or diagnosed disability of a fetus and requiring facilities to bury or cremate fetal remains — was blocked by federal courts and, as a result, the state recently asked the Supreme Court to weigh in. This is one of 13 cases teed up to challenge Roe, according to Planned Parenthood.
But, so far, Indiana is the furthest along in the court pipeline as it’s the only state to officially ask the country’s highest court to review an abortion case as of late November. (Alabama indicated that it will ask SCOTUS to review a challenge against its law outlawing a common second-trimester abortion procedure.) Meaning, Pence’s anti-abortion law could be the first case to render Roe obsolete under a more conservative court with Justice Brett Kavanaugh, who was narrowly confirmed by the Senate in October even after being accused of sexual assault.
Various religiously-affiliated groups (Southern Baptist Ethics, National Association of Evangelicals, Concerned Women for America, National Legal Foundation, and Pacific Justice Institute) urged the Supreme Court to hear the case and explicitly asked justices to reconsider Roe in a friend-of-the-court brief filed Nov. 15.
“[The petition] presents foundationally important questions about abortion and how the right to abortion can be harmonized with our Nation’s compelling interests in preventing discrimination based on race, sex, and mental disability,” they wrote. “The Court should also consider whether it should overrule its prior decisions in Roe and Casey, in whole or in part.”
But Americans United for Life and the Charlotte Lozier Institute (a research and education institute of the Susan B. Anthony List) argued that not all of the Indiana law conflicts with Supreme Court abortion precedents.
“Regulating the disposition of human fetal remains does not conflict with Roe or Casey,” they wrote in support of Indiana. (They also noted that fetal remains that aren’t buried or cremated have been “dumped in landfills and burned to generate electricity.”) The brief makes no mention of the other issue — prohibiting abortions solely by race, sex or disability of the fetus — which does trigger a challenge.
In a separate Amicus filed, the Charlotte Lozier Institute bizarrely presents both arguments, saying the Supreme Court can uphold the entire Indiana law without disturbing underlying precedents, but also concludes that the viability rule is inadequate. “The Supreme Court has overruled its prior decisions in more than 230 cases,” they wrote.
The Alliance Defending Freedom and the Radiance Foundation, for their part, argue that nothing about the Indiana law intervenes with the general right to abortion as it is “narrowly tailored” and the state is only trying to prevent eugenics. (Disability rights advocates have criticized these types of restrictions as a shell game.)
“In fact, Indiana’s anti-discrimination provision is precisely the kind of law that survives Casey. The law does not interfere with the general right to abortion as this Court articulated it in Casey,” they wrote.
Mary Ziegler, a professor of law at Florida State University who specializes in the legal history of reproductive health, disagrees, explaining that “Casey unambiguously says that whatever abortion right you have applies before viability and viability was the cutoff.”
“So, to say that you can ban a category of abortions pre-viability would require you to transform Casey or overturn Casey. So what the Alliance Defending Freedom is doing is they are not asking the court to explicitly overturn Casey, but they are asking the court to do to Casey what Casey did to Roe, which is to make it fundamentally different and fundamentally less protective of abortion rights,” she told ThinkProgress.
“It’s more interesting to me that they are even bothering to argue that — in other words — that they are just not saying like the other abortion group… ‘we have a majority now that is going to overturn Roe and Roe and Casey are bad law,'” she added.
Some anti-abortion groups could be worried the strategy will backfire should the movement ask for too much too soon, remembering the outcome of Casey, when groups strived for banning abortion outright but ultimately got incremental restrictions instead. The 1992 Supreme Court decision made it easier for the anti-abortion movement to push restrictions as the ban standard changed from trimester to viability and the court added an ambiguous undue burden test that Whole Woman’s Health v. Hellerstedt later clarified.
“There is a concern among the large and, I guess, the more connected anti-abortion groups that if the movement pushes too fast that the court might resist. I think that is especially true of John Roberts and maybe even Brett Kavanaugh,” said Ziegler.
Historically, there has always been in-fighting within the anti-abortion movement. There are some who consider themselves “absolutists” and believe that anything short of banning all abortions is morally reprehensible. Heartbeat bans were a point of contention, with the anti-abortion groups split on the legal strategy. Established anti-choice activist James Bopp Jr. expressed concerned with Ohio’s heartbeat bill, testifying against the measure and saying it would give the Supreme Court an opportunity to strengthen Roe. Ohio Right to Life also believed it distracted from other measures with greater chance of enactment, like 20-week bans.
This post has been updated to more accurately state the Americans United for Life’s position.