December 5, 2016
When Republican presidential nominee Donald Trump won enough electoral college votes to become the next president of the United States, I gloomily prophesized the end of Roe v. Wade, the likelihood that abortion will become unobtainable in a number of states, and that hormonal contraception may all but disappear for many across the country.
But I forgot that when reproductive-rights activists are pushed into a corner, they just work even harder.
At the end of November, three lawsuits were filed by abortion-rights groups—spearheaded by Spearheaded by the American Civil Liberties Union (ACLU), the Center for Reproductive Rights (CRR), and Planned Parenthood Federation of America (PPFA)—intending to reverse red-state laws that restricted access to safe, legal abortion services. These suits challenge regulations in Alaska, Missouri, and North Carolina that have closed clinics or whittled down the gestational timeframe in which a patient can access care.
The Alaska lawsuit and the Missouri challenge are similar, with both attacking rules that mandate how an abortion clinic must operate in their particular states. These are the same rules that were found to be medically unnecessary and aimed at closing clinics and burdening a pregnant person’s access to abortion in last summer's Supreme Court case, Whole Women’s Health v. Hellerstedt.
In Alaska, the plaintiffs are challenging requirements that any abortion after the first trimester must be performed in what would essentially be an ambulatory surgical center [ASC]. Currently that rule has forced patients to leave the state for any abortion after 14 weeks gestation because no clinic is equipped or staffed in such a way. The only clinics in Alaska are in Anchorage, Juneau, and Fairbanks, all between 400 and 850 miles apart from each other, making it already difficult to get care within the first trimester limit, and sometimes forcing patients to fly to clinics even within the state.
In Missouri, they are challenging the ASC-like standards as well, and the requirement that abortion-performing doctors have local admitting privileges. It is those rules that forced the Columbia, Missouri, Planned Parenthood to stop offering medication abortion just a few months after it had reintroduced the services, due to legislative pressure on the local university to withdraw admitting privileges being granted to a physician working there. If abortion providers prevail in this particular suit, there is a possibility that Missouri cities such as Joplin and Springfield could also start offering early abortions at their offices, as well. That would be a dramatic change for a state that has had just one clinic for almost all of the last four years.
Both suits could have massive logistical impact on abortion access if they are successful, but the North Carolina suit is probably the most ambitious even though a resulting win may initially look like it has little effect at all. There, plaintiffs are challenging the state’s ban on abortions after 20 weeks, a ban which not only violates Roe v. Wade because make abortion illegal at a point prior to viability, but because it also does not allow an exception for a pregnant person’s health—only if that person’s life is in jeopardy or there is the possibility of "serious risk of substantial and irreversible physical impairment of a major bodily function."
“Of the three lawsuits filed, it is the North Carolina case that could have the biggest effect on the national abortion-rights landscape,” legal analyst Jessica Mason Pieklo explains at Rewire.news. According to Pieklo, “The Roberts Court refused to take the Arizona [20-week abortion ban] case, tacitly acknowledging that viability is a critical prong of abortion rights jurisprudence. The Roberts Court similarly refused to intervene in pre-viability challenges passed in Arkansas and North Dakota. Those measures were blocked by federal courts and the Eighth Circuit Court of Appeals. A win in North Carolina could reinforce that firewall against a direct overturning of Roe. A victory could also open up a path to challenge other 20-week bans in places like Wisconsin and even Texas. In short, this is an important case to watch.”
Americans United For Life (AUL), the anti-abortion legal group responsible for so many of the model abortion restrictions that have passed in individual state legislatures since 2010, argues that if North Carolina does lose the case, it shouldn’t do much to set a precedent that could be used down the road. AUL’s Denise Burke, vice president of legal affairs, told NPR News that the challenge is about the “health exception” not being expansive enough, rather than the pre-viability standard itself. “The plaintiffs are simply saying the exception [in the North Carolina law] is too narrow," she told the news outlet, noting that Texas and other states’ 20-week bans have not been overturned and for the most part have gone unchallenged.
Burke is partially correct. The 20-week bans in Texas, Nebraska, Missouri and other states haven’t been challenged—but that doesn’t necessarily make them constitutional. So far reproductive rights legal experts have held off on challenging the bans in more conservative court circuits, unwilling to risk a potential ruling against them. And in a number of states where the laws have passed there has been no one able to challenge them in the first place, since providers didn’t offer abortion services that late in gestation in the first place. In those states where there have been challenges—Arizona, Idaho and Georgia—the courts have primarily ruled to block the law (Georgia’s story is a confusing one where the law was mysteriously and without any announcement reinstated and then challenged a second time).
The suit in North Carolina is a chance to add to the tally of states that find a 20-week ban violates Roe v. Wade, and it cannot be overstated how essential that is as we head into a Trump presidency. There is little doubt that at some point the Supreme Court will be reviewing a 20-week abortion ban, and now the hope is that it occurs sooner rather than later. A Trump-appointed judge is likely to put Justice Anthony Kennedy back into the swing vote role he was best known for prior to the death of conservative Justice Antonin Scalia, and a pile of lower court rulings stating a 20-week ban is unconstitutional will go far in wooing him into upholding precedent.
The sweeping GOP gains on November 8 had many of us all but ready to lie down in defeat, heartbroken over the assumption that our already frail network of access for abortion and birth-control options would be completely dismantled before there was another shot at the White House. Luckily others were strategizing an aggressive, proactive plan to turn an electoral loss into a chance to gain health-care access in some of the most endangered states. With knowledge that there is little to lose in court—and a significant victory in WWH v. Hellerstedt to build off—reproductive-rights activists are done being cautious and are instead seeking out wins.
I should have expected nothing less. After all, we do our best fighting when our backs are to the wall.