Abortion foes seize on chance to overturn Roe
The anti-abortion movement believes it’s one Donald Trump-appointed Supreme Court justice away from a shot at overturning Roe v. Wade, and advocates are teeing up what they hope will be the winning challenge.
From Iowa to South Carolina, lawmakers are proposing some of the most far-reaching abortion restrictions in a generation, hoping their legislation triggers the lawsuit that eventually makes it to the high court.
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Mississippi just approved the earliest abortion ban in the country — at 15 weeks of pregnancy — and Kentucky last week banned the procedure used in most abortions after 11 weeks. Legislatures in Ohio and South Carolina are weighing total prohibitions of the procedure, while Iowa is considering a ban as soon as a heartbeat is detected — all bills that if signed into law would violate Roe and prompt lawsuits.
“That could ultimately be a bill that revisits Roe v. Wade,” Ohio state Rep. Ron Hood said of his bill to prohibit all abortions. “One flip of a Supreme Court justice, and revisiting Roe v. Wade looks very, very promising.”
But the aggressive strategy is causing a rift in the anti-abortion movement, with some hesitant to test the limits of the landmark 1973 decision before it‘s clear five justices are willing to overturn it. In the past several years, the justices have refused to weigh in on state bans on the procedure before the point of fetal viability — the current legal standard — generally understood as 24 weeks.
Rep. Steve King (R-Iowa), who has authored legislation, H.R. 490 (115), to prohibit abortion nationwide when a heartbeat is detected, often at six weeks, says National Right to Life — the oldest and perhaps most influential anti-abortion group — is blocking his bill in favor of a more incremental strategy.
“They’re standing in the way” of a House floor vote, King told POLITICO. “They are dividing the pro-life movement in this country. I’ve said, ‘Please lead, or get out of the way.’”
National Right to Life President Carol Tobias said the group does not oppose King’s bill. But it is focused on enacting prohibitions of the procedure at 20 weeks, based on the contested idea that that is the point at which a fetus can feel pain.
“We told him we wouldn’t oppose the bill,” she said. “There could be different ways of achieving the same goal.”
Under a precedent set by former Speaker John Boehner, King said House GOP leaders won’t bring an anti-abortion bill to the floor unless it is supported by three groups: National Right to Life, the Susan B. Anthony List and the Family Research Council. The latter two support King’s bill.
A spokesperson for Speaker Paul Ryan denied such a rule exists.
The determination to revisit Roe comes amid renewed speculation about the possible retirement of Justice Anthony Kennedy, which would give anti-abortion forces their best opportunity in a generation to weaken or strike down the ruling that made abortion legal. The Ronald Reagan appointee has ruled in favor of abortion rights, most notably by switching his vote during deliberations in Planned Parenthood v. Casey, a 1992 decision that upheld the Roe precedent.
King and like-minded lawmakers want to enact a bill now that could set up a Supreme Court showdown in one to two years, when another Trump-appointed justice might be seated.
“I wrote the heartbeat bill to go before the court after the next appointment at the Supreme Court,” King said. “And I’ve been absolutely clear about that with the pro-life movement.”
But National Right to Life and other parts of the anti-abortion movement have moved away from the idea of challenging Roe until the composition of the high court changes, particularly in the wake of its 2016 decision that struck down a Texas law on the grounds it unduly restricted access to the procedure. Trump promised during his campaign he would appoint “pro-life” justices, a vow that won him support from anti-abortion groups.