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A Supreme Court Abortion Fight Could Come in Time for 2016 Elections

Jul 26, 2013 | In the News

A Supreme Court Abortion Fight Could Come in Time for 2016 Elections

State Anti-Abortion Laws Appear Headed for a Supreme Court Challenge


July 26, 2013—

The cornerstone of the modern abortion rights movement is under siege.

Twelve states have passed laws banning abortions at 20 or fewer weeks after conception, all directly flaunting the legal precedent set by the landmark 1973 Roe vs. Wade Supreme Court ruling. The most stringent law is in North Dakota, which has banned the practice after six weeks.

Six of those laws have been partially or fully blocked by the courts (including North Dakota’s), and more challenges are likely to come.

As they do, all signs point to a march that will take the issue to the steps of the Supreme Court.

What is less clear is who will win.

“If four of the members want to take the case, they’ll take it,” Peter Hoffa, an American history professor at the University of Georgia, told ABC News. “There are four members of the court now who feel that Roe v. Wade was wrongly decided.”

Add a fifth, believed by some observers to be Justice Anthony Kennedy, and the case could overturn 40 years of legal precedent on abortion.

As more laws are passed and are challenged in federal courts, the more likely a Supreme Court challenge to Roe v. Wade becomes.

Perhaps sensing blood in the water, anti-abortion advocates openly welcome the possibility.

“We would welcome a challenge at the Supreme Court level because we think we would have enough votes to uphold the law,” Mary Spaulding Balch, director of state legislation for the National Right to Life Committee, told ABC News.

The National Right to Life Committee drafted the model bill that inspired the first statewide, 20-week abortion ban, in Nebraska.

It prohibits abortions after a fetus is “pain capable,” which is believed to be around 20 weeks, according to disputed studies. Roe v. Wade established a “viability” standard that allowed abortions until 24 weeks of pregnancy, after which the fetus is generally believed to be capable of surviving outside of the womb.

Spaulding Balch said she senses weakness in her opponents, especially when it comes to being willing to escalate a challenge to “pain capable” laws in federal courts, a precursor to a potential hearing at the Supreme Court.

“I’ve been in this movement for over 40 years and it used to be the norm that whenever a state passed a piece of legislation, our opponents would run immediately and get an injunction,” Spaulding Balch said. “The pain capable laws are the exception.”

“My guess is that they’re as pragmatic as I am, and you have to be able to count to five,” she said, noting the number of Supreme Court justices needed to reach a majority.

Karen O’Connor, an American University political science professor and a supporter of abortion rights, put it bluntly: “I think we are going to see Roe overturned.”

“There are so many cases that are going to be pending in the circuit court, and one of the indicators as to whether or not the Supreme Court takes the case is conflict in the circuit,” O’Connor told ABC News. “We’ll see this happening all this year, so I would say the year after next is going to be a blockbuster year for the court — I’m thinking 2015.”

Spaulding agreed that 2015 is a realistic possibility for the court to address abortion wholesale.

If the issue is not already near the forefront of the political consciousness, it will be roughly one year away from the 2016 presidential election.

A likely presidential candidate, Sen. Marco Rubio, R-Fla., has already staked his conservative credibility on backing a 20-week ban on abortions in the Senate, mirroring one already passed in the House of Representatives.

Texas Gov. Rick Perry, another Republican who may take a second stab at the presidency, spearheaded his state’s push to pass their 20-week ban this summer.

Adding to the potential political bonfire, Democrats hope the 2016 Republican nominee will be challenged by a Democratic woman, former Secretary of State Hillary Clinton, which would only help solidify a Democratic narrative that the GOP is pursuing a war on women.

All of this comes after 40 years of relative tranquility on the abortion front.

Now, abortion-rights advocates see a deluge of coordinated attacks on abortion rights — many of which bear similar markings of a strategy to exploit potential fault lines in public support for abortion.

A new ABC News/Washington Post poll Thursday found that while a majority supports legal abortion in all or most cases, 56 percent of respondents preferred to have abortion legal up to 20 weeks, compared to 27 percent who preferred 24 weeks.

A recent Wall Street Journal/NBC News poll reported a similar finding — more said they would support a 20-week ban than those who would oppose it.

But in some states, like Arkansas and North Dakota, where bans are in place for 12 and six weeks, respectively, abortion rights advocates say there is no question that the intent is to outlaw abortion entirely.

“The chipping away has definitely been their strategy, but I think it’s become more extreme and more oblique recently, because passing a ban at six weeks is not oblique — it’s not a chipping away,” Julie Rikelman, litigation director for the Center for Reproductive Rights, told ABC News.

That’s one reason why Peter Hoffa, who co-wrote a book on the Roe v. Wade decision, believes that the court may restrict or restrain abortion rights, but is unlikely to do away with it entirely, as some anti-abortion advocates hope they might.

Hoffa said Justice Kennedy is has indicated an unwillingness to entirely undo a decision that women have “based so many of their reproductive choices on.”

However, Hoffa noted: “It might be more narrow than it is.”

CORRECTION: The first statewide 20-week abortion ban was enacted in Nebraska, not North Dakota.


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