Federal Courts and Nominations

Abortion cases are heading toward the Supreme Court. Can the justices avoid them for long?

Abortion opponents who have waited decades for a reliably conservative Supreme Court are knocking on the building’s bronze doors. But after a historically partisan confirmation fight, the justices may not answer.

Cases challenging the timing, methods, funding and providers of abortion are headed inexorably toward the high court at a time when Chief Justice John Roberts and his colleagues are seeking a lower profile.

Before new Associate Justice Brett Kavanaugh’s confirmation battle was consumed by an allegation of decades-old sexual assault, his position on abortion loomed paramount. Kavanaugh, 53, referred to Supreme Court decisions legalizing and affirming abortion rights in 1973 and 1992 as “precedent on precedent.”

When the assault accusation threatened his eventual 50-48 confirmation, he erupted in a partisan tirade against Senate Democrats and “left-wing opposition groups.” That appearance of partisanship has Roberts and colleagues hoping to avoid hot-button issues that could divide the court 5-4 along ideological lines.

“We do not sit on opposite sides of an aisle,” Roberts said last week at the University of Minnesota, quoting from Kavanaugh’s conciliatory speech at his White House swearing-in ceremony. “We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.”

The combination of ready-made abortion challenges and the justices’ likely reluctance to hear them has left both sides in the debate wondering what will happen next.

Louisiana and Kansas have asked the court to let them deny Medicaid funds to Planned Parenthood, jeopardizing preventive care and contraception services for low-income clients. The justices could decide as early as this week whether to hear those cases.

Indiana has asked the justices to reverse a lower court decision blocking the state from outlawing abortions sought because of gender, race or disability. The state also wants to require that fetal remains are buried or cremated. Vice President Mike Pence signed the law when he was governor.

Other cases working their way through federal appeals courts seek to impose requirements on abortion clinics and providers similar to those the high court struck down in a Texas case two years ago, when Associate Justice Anthony Kennedy held the tie-breaking vote. Kavanaugh’s arrival could portend a reversal in the future.

And lurking in lower courts are more restrictive state laws banning abortions after a certain number of weeks, as well as others banning the most common method of second-trimester abortions.

Abortion calculus

The flurry of activity in federal and state courts began before Kennedy’s retirement and Kavanaugh’s confirmation gave the Supreme Court five solidly conservative justices. The question is whether that transition will translate into action or caution.

“That’s the calculus we’re all trying to do,” said Steven Aden, general counsel at Americans United for Life, which opposes abortion rights in courts across the country. Kavanaugh’s presence, he said, “makes the abortion industry cautious.”

Neal Devins, a William & Mary Law School professor who has written on abortion law and politics, predicted the court under Roberts will steer clear of abortion cases for now.

”I think he wants to do everything in his power to have the court look like a court of law and not a political court,” Devins said.

Abortion rights groups would be happy if the chief justice swayed his colleagues in that direction. They have been winning more than losing in state and federal courts, which have struck down efforts by Republican state legislatures to limit when and where women can get abortions.

“It is hard to say that the floodgates will be any more open than they already have been,” said Nancy Northup, president of the Center for Reproductive Rights, which is fighting state restrictions in 20 court cases.

Despite those victories, pro-choice groups remain concerned that a split between federal appeals courts could develop that would put pressure on the Supreme Court to settle those differences – if not this term, then in the near future.

“Then it becomes a point of saturation, where the Supreme Court has to take one of these cases,” says Leslie McGorman, deputy policy director for NARAL Pro-Choice America. “If they slow-walk it, what is that? Two years? Five years? Either way, it’s detrimental.”

Stopping short of Roe

The last major case involving abortion procedures was decided in 2007, when the justices upheld a federal law banning so-called “partial birth” abortions. The key vote came from new Associate Justice Samuel Alito, whose predecessor, Sandra Day O’Connor, had voted to strike down a similar law seven years earlier.

Kavanaugh’s replacement of Kennedy could have the same effect on the court’s 2016 ruling striking down a Texas law that required abortion clinics to meet surgical-center operating standards and doctors to have admitting privileges at nearby hospitals. Similar laws in Louisiana, Missouri and Arkansas are working their way through appeals courts.

Those efforts to restrict abortion don’t extend to overturning Roe v. Wade, the landmark ruling that made abortion legal nationwide in 1973. Many experts believe that decision won’t be overruled with a narrow 5-4 conservative majority on the court.

Kavanaugh might not have reached the court without the enthusiastic support of moderate Republican Sen. Susan Collins, who sought assurances about his views on abortion. In a private meeting with her, Collins said, Kavanaugh called a longtime precedent such as Roe “not something to be trimmed, narrowed, discarded, or overlooked.”

On the other hand, President Donald Trump said during the 2016 campaign that he would choose “pro-life justices” and, if he named enough of them, overturning Roe would “happen automatically.”

Kavanaugh and Trump’s first Supreme Court nominee, Associate Justice Neil Gorsuch, may be enough. Gorsuch showed no hesitance in his first full term to overturn long-standing precedents on labor union fees and online sales taxes.

For now, however, the court is likely to consider only narrow changes to the abortion right.

“The court is going to incrementally chip and chip and chip away at it,” Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center, predicted. “We’re in a totally new landscape.”

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