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A new wave of lawsuits could start undoing decades of damage to Roe v. Wade

Three major court challenges to state abortion laws have been launched, with more still to come.

Planned Parenthood supporters
(Andrew Burton/Getty)
(Andrew Burton/Getty)

A coalition of reproductive and civil rights groups, including Planned Parenthood, announced three new federal and state lawsuits to reporters Wednesday, kicking off a wave of legal efforts to defend shrinking abortion access across the US.

States have passed hundreds of new anti-abortion laws in just the past five years. But these three lawsuits are taking on restrictions that have been around for decades, and that have since become a model for other anti-abortion states to follow.

The lawsuits are an aggressive move to gain back some of the ground that reproductive rights advocates have been steadily losing ever since the Supreme Court’s 1973 Roe v. Wade decision legalized abortion.

The stakes for abortion rights in America are high, especially with an incoming Trump-Pence administration that is very unlikely to advance women’s health. Although state restrictions have been eroding the landscape of abortion access for decades, the huge flood of state restrictions since 2010 have plunged that landscape into a sinkhole. Some states have so few remaining clinics and so many restrictions that abortion access isn’t much better than the days before Roe v Wade.

It’s a crisis that has spurred reproductive rights advocates to spring out of a decades-long defensive crouch, and proactively fight for abortion to be treated as a routine medical practice and a basic human right for women.

The cases could strike down major anti-abortion laws that have been around for decades

The first three cases that Planned Parenthood, the American Civil Liberties Union (ACLU), and the Center for Reproductive Rights are taking on together will challenge laws in Alaska, North Carolina, and Missouri. Those groups told reporters these suits will be the first of many.

In Alaska, due to a series of restrictions passed more than 40 years ago, it’s almost impossible for women to get a second-trimester abortion without traveling out of state — which, given the state’s geography, is a lot more difficult for Alaskans than for Americans living in the lower 48 states. It also makes it a lot harder for low-income women to scrape together the money to travel, get time off of work, and arrange child care in order to get the abortion they need.

Planned Parenthood of the Great Northwest and the Hawaiian Islands is suing the state of Alaska because, it says, it is forced to turn away patients in the second trimester for no medical reason. Second-trimester abortion has a low complication rate and can be safely performed in an outpatient setting, but Alaskan laws bar clinics like Planned Parenthood from performing the procedure.

North Carolina, in 1973, became the first state to enact a ban on abortion after 20 weeks of pregnancy — with an exception for serious health issues for the woman, but not for abnormalities of the fetus. But in 2016 the law was amended to make the health exceptions so narrow, it meant that a doctor would have to wait until her patient was gravely ill before performing a medically necessary abortion. Twenty-week abortion bans have spread to 14 other states in recent years.

Both the 20-week ban itself and the overly narrow health exceptions are blatantly unconstitutional under Roe v. Wade, civil rights advocates say. The Supreme Court has consistently held that it’s unconstitutional to ban abortion before a fetus is viable. Viability has to be determined by a doctor and is different for every pregnancy, but it usually occurs after 24 weeks of pregnancy. (Confusingly, some 20-week abortion bans use inaccurate medical language to describe pregnancy, which means that in practice they may ban abortion at either 20 or 22 weeks. A small percentage of infants born prematurely after 22 weeks have been known to survive, but their odds are poor enough that doctors don’t usually consider 22 weeks viable.)

And in Missouri, the lawsuit is challenging two laws that are basically the same as the Texas laws that were ruled unconstitutional by the Supreme Court this summer. Missouri, in 1986, became the first state to restrict abortion by requiring doctors and clinics to comply with hospital-level standards that are completely unnecessary for an outpatient procedure like abortion. Doctors were required to have difficult-to-obtain “admitting privileges” at a nearby hospital, and abortions had to be provided in mini hospitals that are expensive to build.

The Court found that these same laws in Texas created an unconstitutional “undue burden” on women seeking abortion.

Why these lawsuits are happening now

Soon after Roe v. Wade was decided, abortion opponents started passing new restrictions on the procedure — many of which were upheld in later court cases that chipped away at some of Roe’s protections.

Since Roe, more than a thousand state laws limiting abortion have been passed, and more than a quarter of those were enacted just between 2011 and 2015, after Republicans swept state legislatures in the 2010 wave election.

One-quarter of all restrictions passed in last five years Guttmacher Institute

And the next four years could be just as bad, or worse, for reproductive rights under a Trump-Pence administration. President-elect Donald Trump has promised to appoint “pro-life” Supreme Court justices who could overturn Roe v. Wade. His vice president-elect, Mike Pence, governed Indiana as one of the nation’s most hardcore abortion opponents. Trump’s pick for health and human services secretary, Tom Price, is staunchly anti-abortion and opposes the Affordable Care Act’s birth control benefit.

But while it makes sense for advocates to start fighting back now, these lawsuits would probably have gone forward in the same way even if Hillary Clinton, a staunch reproductive rights supporter, had been elected.

That’s because advocates are looking to capitalize on the momentum they gained in June, when the Supreme Court handed them a game-changing victory in the Texas abortion rights case Whole Woman’s Health v. Hellerstedt.

The strong precedent set in that case could help reproductive rights advocates undo the decades of damage that have been done to abortion access ever since it was made legal under Roe.

And what’s more, Whole Woman’s Health was decided with a five-vote majority — a pro-Roe voting bloc that will remain intact even if Trump appoints an ultra-conservative ninth justice to replace the late Antonin Scalia.

The pro-choice plaintiffs should have a strong case to overturn these and similar laws, but of course success isn’t guaranteed. Lower courts could rule against them, and it’s possible, albeit unlikely given recent precedent, that the cases could be appealed all the way up to the Supreme Court only to lose.

It’s worth noting, though, that the Supreme Court calculus could dramatically change if a liberal justice retired or died under Trump. And while he’s consistently voted to uphold Roe, Justice Anthony Kennedy — the crucial fifth pro-choice vote in the Whole Woman’s Health case — personally opposes abortion and can be a bit of a wild card on reproductive health issues.

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