In an action shedding only limited light on where it now stands on abortion, the…
The abortion battle will potentially move to the state level
“Today’s decision can only cause one to wonder which cases the Court will overrule next,” Justice Stephen Breyer said earlier this month in dissenting from a Supreme Court decision that overturned a precedent concerning state sovereignty. Among the precedents he now sees in jeopardy is Roe v. Wade, the Supreme Court’s 1973 decision legalizing abortion.
Breyer, a comparatively low-profile member of the Supreme Court’s four-member liberal bloc, is hardly alone in that. Speculation about the future of Roe v. Wade has reached the boiling point. States throughout the country, with Alabama leading the charge, have passed laws imposing tough new restrictions on abortion. On the other side, other states like New York have enacted highly permissive laws intended to provide coverage for abortions when and if Roe goes down, returning control to the states.
In fact, laws like Alabama’s that bar abortion after the early weeks of pregnancy may not be the basis for the Supreme Court’s eventual decision, whether that be to uphold Roe v. Wade, overturn it, or, most likely, something in-between. Instead, the distinction is likely to go to one or more of the state laws that chip away incrementally at abortion cases that are now farther along in the court system.
There was a hint of what that might look like when the court, in an unsigned opinion, approved part of an Indiana law on abortion while expressing no opinion on a second, more restrictive part of the statute.
The section of the law approved by the court on May 28 requires “dignified” disposal of the remains of aborted fetuses by burial or cremation. Indiana’s appeal to the court said the measure was intended to show respect for “a partially gestated human.”
The second section of the law would ban abortions performed because of the sex, race or potential disability of the fetus. The court noted that up until now only one court has taken a position on such a law — the 7th Circuit Court of Appeals, which ruled against the Indiana statute — and it customarily waits until at least two lower courts have weighed in before taking a stand.
Almost certainly, though, the Supreme Court will soon accept some other abortion-related cases for full-scale review. Two such requests are now pending. One concerns a Louisiana law requiring that doctors who perform abortions have hospital admitting privileges. The other involves another Indiana measure requiring that, unless she declines in writing, a pregnant woman will view an ultrasound image of the child and hear the fetal heartbeat at least 18 hours before an abortion.
Pro-life firebrands may prefer that a law challenging Roe v. Wade head-on be the one that the Supreme Court considers, but pro-life objectives arguably would be best served if that doesn’t happen.
A case giving states greatly expanded leeway to circumvent Roe without flatly reversing it seems more likely to bring Chief Justice John Roberts on board with his four conservative colleagues — Justices Thomas, Alito, Gorsuch and Kavanaugh — than does one calling for an unconditional overturning of Roe. Justice Breyer, along with Justices Ginsburg, Sotomayor and Kagan, will oppose either outcome.
In either event, whether Roe v. Wade is overturned or left intact, the practical result would be much the same: The battle over abortion will go on at the state level for years to come. But pro-lifers no longer would have to fight with the albatross of Roe around their necks. That in itself would be enormous progress.
Russell Shaw is a contributing editor for Our Sunday Visitor.