The court on Monday deferred action on two less sweeping abortion disputes from Indiana though it will have another chance to step in next week. In one case, Indiana is seeking to bar abortions motivated by the risk of a genetic disorder and require clinics to bury or cremate fetal remains. In the other, the state aims to reinstate a requirement that an ultrasound be performed at least 18 hours before an abortion.
The appeals are part of a growing list of Supreme Court cases likely to give an early indication of how quickly the court’s conservative justices — particularly Chief Justice John Roberts and new Justice Brett Kavanaugh — are prepared to cut back abortion protections.
Any case granted review in the coming weeks would be heard in the term that starts in October and be decided in the thick of the 2020 election campaign, when President Donald Trump will be seeking a second term. Restricting abortions is a top policy goal for the conservative and evangelical voters who helped elect Trump, and the president’s authority to nominate Supreme Court justices has proven to be a potent political motivator for Republicans.
The always-heated abortion debate took on additional urgency this month in response to laws passed at the state level. Georgia banned the procedure once a fetal heartbeat can be detected, which can occur before a woman knows she is pregnant. Then Alabama made abortion a felony in almost all cases with a law designed to prod the Supreme Court to overturn the 1973 Roe v. Wade decision, which legalized the procedure nationwide.
Democratic presidential candidates have seized on the issue, hoping to rally their voters to fight to preserve what they describe as a fundamental part of a woman’s reproductive rights. While some Republicans cheered the restrictive state laws, others like House Republican leader Kevin McCarthy said the Alabama law goes too far because it doesn’t make an exception for victims of rape or incest.
Liberal Justice Stephen Breyer underscored the concerns among abortion-rights advocates last week when he dissented from a Supreme Court ruling that overturned a 40-year-old precedent involving sovereign immunity. Citing the 1992 Supreme Court decision that reaffirmed the constitutional protections for abortion rights, Breyer said judges shouldn’t reverse precedents simply because they disagree with them.
“The law can retain the necessary stability only if this court resists that temptation, overruling prior precedent only when the circumstances demand it,” Breyer wrote. “Today’s decision can only cause one to wonder which cases the court will overrule next.”
Behind the Scenes
Both Indiana appeals are optional; the court could turn them away without making any comment on the merits, as it does with thousands of appeals every year. Four votes are needed to accept a case, meaning that in all likelihood either Roberts or Kavanaugh would have to join with the three most conservative justices to grant review.
Should the court reject the appeals, one or more justices could publicly dissent or issue an opinion that sheds light on the behind-the-scenes debate.
An opinion may already be in the works in the case over fetal disposal and genetic disorders. Indiana’s appeal first appeared on the agenda for the justices’ private conference in January. It has been held over for 13 subsequent conferences since then, suggesting an unusual amount of internal wrangling.
Indiana argues that the fetal-disposal provision is consistent with the 1992 Planned Parenthood v. Casey decision, which upheld the fundamental right to abortion but said states have an interest in protecting the life of the fetus after viability.
“These interests arise because a human fetus alone has the potential to become a unique and independent human person,” the state said in court papers. “The same concern for the dignity of what was once a human life underlies the Fetal Disposition Provision.”
In striking down the fetal-disposal rule, a Chicago-based federal appeals court said it has “no rational relation to a legitimate state interest.”
Down Syndrome
The genetic-disorder provision touches more directly on the core right to abortion. It would bar abortions motivated by the fetus’s race or gender or the risk of a genetic disorder such as Down syndrome. Indiana’s appeal said lawmakers enacted that provision in response to “the alarming trend of disability-selective abortions.”
The appeals court said the selective-abortion provision would “violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability.”
The ultrasound case centers on the 18-hour waiting period and doesn’t concern other aspects of Indiana’s informed-consent law. That measure requires that the woman be given information about the fetus’s development and alternatives to abortion and that the woman be offered the opportunity to see the ultrasound.
Indiana argued that the 18-hour requirement “informs a woman’s abortion choice and affords her the opportunity to reflect on the information conveyed.” But a federal appeals court said the rule “places a large barrier to access without any evidence that it serves the intended goal of persuading women to carry a pregnancy to term.”
Hospital Privileges
The high court also could act soon in a case over another Alabama law. The state is asking the court to revive a law that would effectively ban the most common abortion method for women in their second trimester of pregnancy.
The method, known to doctors as dilation and evacuation, involves dismembering the fetus and then removing it from the uterus. Opponents of the ban say it would eliminate access to abortion in the state after the 15th week of pregnancy.The most likely candidate for Supreme Court review ultimately might be a Louisiana case that the four liberal justices could vote to grant. Louisiana is trying to require doctors performing abortions to have admitting privileges at a nearby hospital. A federal appeals court upheld the state’s measure, even though the Supreme Court struck down a nearly identical Texas law in 2016.
In February, Roberts joined the liberals in a five-justice majority to put the law on hold while the court considers taking up an appeal by clinics and doctors. Roberts gave no explanation but his vote reinforced suspicions he is inclined to move slowly on abortion. The court won’t say until at least this fall whether it will hear the case.
Kavanaugh voted to let the law take effect but said doctors would have had another 45 days to try to secure the necessary privileges.
The court’s newest justice also suggested he wasn’t in any rush to take up the case. Kavanaugh said his approach might have let the court avoid hearing the appeal. By contrast, he said, the majority “presumably” would vote to hear the case in the next term.
More must-read stories from Fortune:
—Abortion is still legal in all 50 states
—Alabama’s abortion bill is the strictest in the nation. Here’s what that means
—Trump keeps alluding to extending his presidency. Does he mean it?
—Meet the Republicans likely to challenge Trump in the 2020 primary
—Is the Muslim Brotherhood a terrorist organization? Trump thinks so
