The short list for Justice
Souter’s retirement has been leaked-all of the candidates named
favor upholding Roe v. Wade and five of the six on the list are
women. That certainly bodes well for pro-choice advocates. "What I’m
hoping is that what we do is Souter or better," said Janet Crepps,
deputy director of the U.S. legal program for the Center for Reproductive
An important consideration
related to who ultimately fills Souter’s seat centers on what issues
the Supreme Court would face in the near future. RH Reality Check
examined some of the cases being challenged in state or other appellate
courts that might make their way to the Supreme Court over the next
few years. It is, of course, nearly impossible to predict which cases will come before the Supreme Court. Thousands of cases are
brought to the court each year and only a handful are heard. Nonetheless, here
we highlight some of the possibilities.
Outright Abortion Bans and
Fetal Personhood Amendments
"It’s hard to predict what
might make its way up to the court," said Gretchen Borchelt, senior
counsel at the National Women’s Law Center. "Certainly we
know that the anti-choice side keeps trying to propose some flat-out
unconstitutional ban on abortion that’s directly challenging Roe and
will be litigated in the courts."
South Dakota, which defeated
two outright abortion bans in 2006 and 2008, both of which would have
directly challenged Roe, is one state where anti-choice activists
have targeted their efforts in recent years. "But this year in the
state legislatures we’ve seen a different attempt, which is [to] establish
fetal personhood," Borchelt said.
North Dakota battled over such legislation earlier this year. This type of legislation,
drawing inspiration from a ballot initiative that was defeated in Colorado
last fall, usually seeks to define a person as beginning as a fertilized
egg. The approach is problematic for a number of reasons. "There
are bills that would not only ban abortion but would have far-reaching
consequences and would get into other life decisions like birth control,
they could trigger investigations into miscarriages, ban in vitro fertilization,
all those things," Borchelt said. The bill was ultimately defeated
in the state senate.
"They’re not giving up [such
fetal personhood legislation]," she said. "We’ve seen that in a
lot of state legislatures this session." Other states that introduced
such legislation included Maryland, South Carolina, Montana, and Alabama.
Though none of the states successfully managed to pass laws that would
have defined so-called "fetal personhood" a national organization,
Personhood USA, continues to put forth efforts to pass such legislation
in the states. According to their website, Personhood USA’s
goal is to introduce such legislation in every state. While it is unlikely
that their efforts in states like Maryland, which has a Freedom of Choice
Act in place, will succeed, they have been more successful in states
like North Dakota. As Borchelt notes, such "personhood" legislation, if passed, would
not only be a direct challenge to Roe v. Wade, but it would also
force courts to rule on the constitutionality of birth control and in
vitro fertilization, among other laws.
Mandatory Ultrasound Viewing
One state that is currently
battling out abortion legislation in the courts is Oklahoma, where
a law that places limits on abortion was
passed last year, vetoed by the state’s governor and then overridden
by the legislature. The law places restrictions on the administration
of a medical abortion, requires women seeking an abortion to view an
ultrasound, and places other restrictions on women’s right to sue
a provider if he or she intentionally withholds information about the
pregnancy, particularly if the fetus has developmental defects. This
kind of legislation seeks to push the boundaries in the Supreme Court’s
1992 ruling in Planned Parenthood v. Casey, in which Souter and
two other justices joined together to simultaneously preserve Roe v.
Wade while opening the doors for states to place limits on the right
to abortion, so long as the laws do not place an "undue burden"
on the woman’s ability to obtain an abortion.
The Center for Reproductive
Rights is currently challenging Okalahoma’s law in state courts and
the case is known as Nova Health Systems v. Brad Henry.
There are two particularly objectionable components to the Oklahoma
legislation, according to Crepps. First, it requires doctors do
a "follow up examination" on women receiving mifepristone (commonly
known as RU-486) for medical abortion, despite the fact that no such
examination is required either by federal regulation recommends or by
sound medical practice. The American College of Obstetricians
and Gynecologists, for example, does not recommend such a protocol.
Similar legislation was passed in Ohio in 2004 that is
currently being challenged by Planned Parenthood.
The law mandates ultrasounds
for surgical abortions, requires that women undergoing abortion view
the ultrasound, and requires physicians to describe the ultrasound to
her out loud.
"Forcing a doctor to say
and forcing a woman to listen to an ultrasound description when neither
of them are interested or think it’s a good idea or necessary for informed
consent is a violation of both their privacy rights but [also] of their
free speech rights," Crepps said.
Legislation asking women to
view ultrasounds is increasingly common. Today, half a dozen states,
including South Carolina and Michigan, have milder versions of Okalahoma’s
ultrasound legislation. Kathleen Sebelius, in one of her last acts as
governor of Kansas before being confirmed as secretary of the Department
of Health and Human Services, signed a law that mandates offering women the option
to view an ultrasound before undergoing an abortion. But if Okalahoma’s
legislation is upheld in state court, other states might begin to copy
it. "Obviously anti-abortion people will be watching [the Okalahoma]
case as well as the Ohio case and seeing if they can pursue that as
a strategy," Crepps said.
Because Okalahoma’s law is
being challenged in state courts, it is unlikely the Supreme Court will
rule on it. But if the anti-choice community is successful in defending
this law, copycat legislation in other states could present a challenge
that could make its way eventually to the Supreme Court.
Pharmacist Refusal Laws
In the Ninth Circuit, pharmacists
a law that ensures
a woman’s access to birth control, including emergency contraception
(commonly known as "Plan B"), because they say it interferes with
their religious rights.
Because of the challenge, the
court has issued a temporary injunction. That means pharmacists can
still refuse to fill birth control prescriptions or sell emergency contraception
to women until the court issues a ruling on the case.
Such legislation touches on
the midnight regulation in the Department of Health and Human Services
that the Bush administration put into place. If the rule is rescinded,
as the Obama administration has pledged to do, then organizations that
supported it may challenge the legislation all the way to the Supreme
Partial-Birth Abortion Ban
Although the Supreme Court
has already upheld the federal Partial-Birth Abortion Ban in their 2007
ruling on Gonzales v. Carhart, Virginia passed a similar ban
that did not include a health exception in 2003. The law has been challenged by the Center for Reproductive rights
in a case known as Richmond Medical Center v. Herring. An appellate
court ruled last May that the Virginia ban placed
an "undue burden" on a woman’s right to obtain an abortion.
If the Supreme Court decides
to hear the case, the ruling on Virginia’s ban could determine how
courts interpret the federal partial-birth abortion ban.
The battles that are currently
taking place in state and appellate courts are important. These are
the cases that could end up before the Supreme Court. The next
justice, whoever that might be, will be facing important decisions about
how women access reproductive health care. Perhaps Crepps is right
and Obama will appoint and the Senate will confirm someone who is "Souter
or better" on women’s rights.