At least 13 abortion cases are either awaiting a decision from a federal appeals court, or were recently decided by such a court and thus are ripe for review by the Supreme Court. Any one of these cases could offer the Court’s conservatives a vehicle to overrule Roe v. Wade if Judge Brett Kavanaugh is confirmed to replace retired Justice Anthony Kennedy.
We identified these 13 cases thanks to a background memo provided to ThinkProgress by Planned Parenthood.
The 13 cases include three where a federal appeals court already ruled against a state law restricting abortion, meaning that the state could seek Supreme Court review of these cases right now. They include two cases with the same name — Planned Parenthood of Indiana and Kentucky v. Commissioner of the Indiana State Department of Health — one of which involves a prohibition on race, sex, and disability-selective abortions, the other involves an 18-hour waiting period for patients seeking abortions.
The third case, West Alabama Women’s Center v. Williamson, involves a state ban on a particular abortion procedure known as “dilation and evacuation.”
Notably, Williamson was heard by two conservative judges who practically begged the Supreme Court to reverse their decision. Chief Judge Ed Carnes authored an opinion for himself and Judge Joel Dubina which began with the words “some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.” Dubina wrote an even more pointed opinion stating outright that Roe “has no basis in the Constitution.”
The other ten cases currently pending before federal appeals courts concern a wide range of issues, including a Louisiana law requiring abortion providers to maintain difficult-to-obtain credentials, a Kentucky law requiring “doctors to display, and narrate in detail, an ultrasound to a woman prior to providing an abortion procedure,” and a suit attacking the Trump administration’s policy of imprisoning undocumented immigrants in order to prevent them from obtaining an abortion.
In nearly all cases, the Supreme Court has discretion to decide which cases it will hear or not hear in a given term — typically four members of the Court must decide to place a case on the Court’s argument calendar. In recent years, the Court rarely heard abortion cases. Justice Kennedy’s views on abortion were just uncertain enough that any justice who voted to hear an abortion case risked having Kennedy hand victory to the other side.
Kavanaugh, however, is almost certain to be a vote to kill Roe. He sided with the Trump administration in the case about undocumented immigrants who were held prisoner to prevent them from having an abortion, and he gave a speech in 2017 where he criticized Roe and praised the dissent.
If Kavanaugh is confirmed, in other words, it is likely that the Court will agree to hear one or more abortion cases very soon thereafter, as the Court’s conservatives will be confident that they will prevail. It is also very likely that the Court will use these cases to effectively kill Roe v. Wade, though there is some uncertainty about how they will kill it.
One way the Court could kill Roe is to simply release a majority opinion that contains the words “Roe v. Wade is overruled.” This honest approach would please many anti-abortion advocates, but it also risks galvanizing voters who support reproductive freedom.
A less honest approach would be to pretend that some shadow of Roe remains good law, but also uphold abortion restrictions that make it impossible to obtain an abortion. In 2016, for example, the Supreme Court struck down — in a 5-3 decision with Kennedy in the majority — a Texas law imposing expensive and unnecessary requirements on abortion clinics. If Kavanaugh joins the Court, Texas could conceivably pass a similar law requiring abortion clinics to have…say, operating rooms wrought from solid gold.
If the Supreme Court upheld such a law — or, more realistically, if it upheld a law imposing similarly expensive but less obviously ridiculous burdens on clinics — it would still be theoretically possible to open an abortion clinic, but the cost of doing so would be prohibitive.