The Supreme Court’s overturning of Roe v. Wade has set off a frenzy of activity in courthouses around the country, with judges being asked to decide when or even whether state-imposed bans or other far-reaching restrictions on abortion can go into effect.
Some of the disputes involve bans that have been on the books but went unenforced for generations.
Some involve “trigger laws” that were designed to take effect if Roe were to fall.
Some entail prohibitions on abortion that were held up pending the ruling on Roe’s fate and only now are moving forward.
To complicate matters, some states have enacted multiple abortion bans in play, and the measures conflict, overlap or are set to take effect at different times.
Here are some of the key legal issues:
THE RULING
The Supreme Court last week struck down the landmark 1973 ruling that legalized abortion nationwide, ruling that the decision to terminate a pregnancy no longer is protected under the U.S. Constitution. The high court left it to the states to decide whether abortion is now legal within their boundaries.
In anticipation of such a ruling, several Republican-controlled states passed strict abortion bans in recent years. Some of these “trigger laws” are now going into effect, while some are being blocked, at least temporarily. In some states, older laws that became null and void because of Roe are resurfacing.
WHAT THIS MEANS
The upshot is that many conservative states now have bans or deep restrictions on abortions, while politicians in Illinois and some other states are seeking to add more protections.
Ultimately, roughly half of the states are expected to outlaw or severely limit abortion.
But the situation has been highly fluid as courts have begun to weigh in on disputes between abortion foes and abortion rights advocates.
Because of bans, tight restrictions or fear of prosecution at some clinics, abortions were available this past week in only the rarest circumstances, if at all, in several states, including Wisconsin.
Patients could get abortions in other states only up to the point at which cardiac activity in the fetus can be detected — normally around six weeks, which is before many women realize they are pregnant.
Near-total bans are expected to go into effect in coming weeks in Idaho, Mississippi, North Dakota and Tennessee as their trigger laws kick in.
In Louisiana and Utah, virtually complete bans are on hold because of court rulings.
COMPETING BANS
Some states, including Texas, have multiple bans on the books, creating confusion for clinic operatorss and patients.
Texas already bans most abortions after cardiac activity is detected. That law, which took effect in September, makes no exception in cases of rape or incest.
On Tuesday, though, a judge in Houston temporarily blocked enforcement of an even stricter state law that would ban virtually all abortions. That law has been on the books for decades but was nullified while Roe was in place.
Even with that older law on hold, Texas still is set to ban virtually all abortions before long: The state has a separate trigger law that will take effect in the coming months.
Planned Parenthood, which has not resumed abortions in Texas, said the organization’s affiliates in states that are “extremely hostile” to abortion access “are being forced to make difficult operational decisions.”
LEGAL ARGUMENTS
Because the Supreme Court said abortion isn’t protected by the Constitution, abortion rights advocates are challenging many of these bans by arguing that they violate their state’s constitution — say, the rights to privacy, liberty or equal protection.
Some of the legal challenges will address whether the bans were enacted properly or conflict with other laws.
“What the litigation is designed to do is to preserve in as many places as we can, as much abortion access as we can, for as long as we can,” said Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project.
Dalven said that ultimately the courts won’t be the solution, that elected officials will need to take action.
James Bopp Jr., a lawyer for the National Right to Life Committee, said lawmakers took steps to make sure the trigger laws withstand legal scrutiny, including having provisions that say a given state’s attorney general or another official will declare the conditions have been met for the law to take effect. Bopp said those measures will ensure that due process has been followed in implementing the laws.
“It’s hard to imagine any valid claims against those laws,” he said.
With laws that have been on the books for generations, there has been mixed legal activity.
Top Democratic officials in Michigan and Wisconsin are asking state courts to rule that the older bans there can’t take effect.
In Arizona, the governor said a new law that takes effect later this year — outlawing abortion after 15 weeks — takes precedence over a total ban adopted before Arizona became a state more than a century ago. Still, providers have stopped performing abortions there, fearing prosecution under the old law.
LOOMING COURT FIGHTS
Some states that are seeking to outlaw abortion might essentially try to reach across state lines to enforce their bans.
In Missouri, a measure that was proposed but failed to pass last year would have made it illegal to abort a fetus conceived in that state — even if the procedure is done in a state where abortion is legal, such as Illinois.
Abortion rights advocates said similar measures might again be proposed there and elsewhere, along with other attempts to restrict travel out of state for abortions.
In Connecticut, a new law protects abortion providers from being sued in other states. Several governors have made or planned similar moves through laws or executive action. The legality of such measures could become the next court frontier in the abortion debate.
Even within states, prosecutions are being challenged. City councils in New Orleans and Austin, Texas — liberal cities in conservative states — are considering measures that would require law enforcement officials to make abortion investigations their lowest priority.
