These Abortion Laws Could Reach The Supreme Court

Originally published on February 8, 2019 7:53 pm
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MARY LOUISE KELLY, HOST:

Today, a Louisiana abortion law is not taking effect. The Supreme Court voted 5-4 to block it for now. The law requires doctors who perform abortions to have admitting privileges at local hospitals. Opponents say it would have left Louisiana with only one doctor able to perform abortions.

ARI SHAPIRO, HOST:

Now, Louisiana is not the only state looking to restrict access to abortion. So to get a sense of what else is out there, we called Mary Ziegler. She's a law professor at Florida State University and author of the book "Beyond Abortion: Roe v. Wade And The Fight For Privacy." I asked her whether we're seeing more states take up the issue now.

MARY ZIEGLER: We are, I think, in anticipation of Justice Kavanaugh voting differently than his predecessor Anthony Kennedy, who was, of course, the swing vote on many abortion cases. I think there's an expectation now that the court will go further in allowing states to restrict abortion or maybe down the road even to ban it.

SHAPIRO: And so how does the law in Louisiana that came before the court this week compare to what you're seeing in other states?

ZIEGLER: Well, the Louisiana law doesn't go as far. There are states that are considering much further-reaching abortion restrictions. For example, Mississippi bans abortion at the 15th week of pregnancy. Iowa and a handful of other states ban abortion when a fetal heartbeat can be detected, which is around the sixth week of pregnancy. So the law that the Supreme Court enjoined is not as sweeping as some of the options that the court would have in terms of potential test cases.

SHAPIRO: Do you think there are other state laws that are likely to arrive at the high court within the next year or two?

ZIEGLER: There are definitely some possibilities. The court has had one possible case in conference multiple times and hasn't decided yet whether to hear it. That case involves an Indiana law that was part of Mike Pence's governorship that has two pertinent parts - one regulating what the law describes as the dignified disposal of fetal remains, another banning what lawmakers describe as eugenic abortions, either abortions in cases, for example, of Down syndrome. So the court could hear that case quickly if it chose to. It's already on appeal from the 7th Circuit.

There are other cases that would take longer to get to the court. They're now pending, for example, in states like Texas and Arkansas. Those include laws regulating dilation and evacuation procedures. Those are the most common second-trimester procedures. So there are a lot of possible candidates. It's probably a question of when, not if, an abortion challenge makes its way to the Supreme Court.

SHAPIRO: When, not if, an abortion challenge makes its way to the Supreme Court. Now, you mentioned that one reason all this action is happening is that people expect Justice Kavanaugh to be more conservative on the issue of abortion than the justice he replaced, Anthony Kennedy. In yesterday's vote, we saw Chief Justice John Roberts side with the more liberal justices in putting a temporary hold on the Louisiana law. Does that mean that Chief Justice Roberts is the new Anthony Kennedy? Or is it impossible to read the tea leaves in that way from this one action?

ZIEGLER: I think it's a little bit early to declare John Roberts the new Anthony Kennedy. But even before yesterday's decision, everybody widely expected him to be the new swing vote on abortion. One of the interesting things, I think, is that Chief Justice Roberts may have different concerns motivating him to sort of sit in the middle on abortion.

In part, they're concerns about the Supreme Court's legitimacy and reputation. There's no reason to think that Chief Justice Roberts is particularly sympathetic to abortion rights claims on the merits. That said, he may have a concern about the way the court approaches abortion rights cases, especially if it looks as if the court has made a sharp swing to the right when it has a majority of nominees who are both Republican but also who seem committed or at least predicted to overturn Roe v. Wade.

SHAPIRO: That's professor Mary Ziegler of Florida State University College of Law. Thank you for joining us.

ZIEGLER: Thanks for having me. Transcript provided by NPR, Copyright NPR.