The U.S. Supreme Court is considering whether to review a 2016 Texas law that would prevent most abortions after 20 weeks of pregnancy. If the court agrees to hear the case, as expected, the decision may not come for months, and a decision could depend on the opinions of Justice Anthony Kennedy, the court’s swing vote. Kennedy has previously voted to strike down state laws that restrict access to abortion, but he’s also voted in other cases to strike down such restrictions. If he sides with the court’s four liberal justices, Roe v. Wade is unlikely to be overturned, but it’s possible if the court is evenly divided, as it has been recently. Here are several possibilities if the case proceeds and justices agree to hear it.
The court finds that the law is unconstitutional. The case is called Whole Woman’s Health v. Hellerstedt, and it’s the first abortion case before the court in decades. The court first agreed to hear the case in April 2017, but in November Justice Ruth Bader Ginsburg revealed that she and Justice Neil Gorsuch planned to vote in favor of upholding the abortion law, which mandates that abortion providers provide women seeking an abortion with an ultrasound, then offer them the option of sitting down with a doctor for a 20-minute abortion. The state says the law is necessary to protect women’s health, but abortion-rights advocates say that the law places too many restrictions on abortion providers and could lead to women dying from complications. The case begins March 27, and the justices are expected to decide by June which of the parties they’ll hear.
The justices rule that the law is constitutional and it’s upheld. The court has upheld abortion rights before, but not in a huge precedent-setting case like Roe v. Wade. In 1992, in Planned Parenthood v. Casey, the court decided that states could not enact abortion restrictions that would impede the procedure, but they could impose extra requirements. The state of Texas passed the 20-week law, which the court chose not to decide on in 1992 because it divided the court. Many legal scholars believe it’s more likely for the justices to overturn the 20-week ban in Whole Woman’s Health v. Hellerstedt, given that the law passed in 2013 with support from at least seven of the nine justices. In 2014, Justice Ruth Bader Ginsburg said she was concerned about the possibility of overturning Roe v. Wade, which protects abortion rights. “You can get 5-4 to go into uncharted waters,” she said. “I don’t feel good about that.”
Kennedy votes to strike down the 20-week abortion ban but votes to uphold the other restrictions. If the case does end up before the court, Kavanaugh’s vote could determine which way it goes. Kavanaugh has previously ruled against abortion rights, including a ruling that found that the law criminalizing abortion procedures performed after 24 weeks of pregnancy was constitutional. But he also wrote an opinion that found Texas’s ban on abortions after 20 weeks unconstitutional. Expect the court to agree to hear the case, based on the expectation that Kavanaugh will recuse himself — he already has from federal court cases for 22 years. If he sticks to that, and doesn’t vote with the court’s liberals, Roe v. Wade would be unlikely to be overturned, but it’s possible if he votes with the court’s conservatives.
If the justices decide to keep the case, this is the way the court is likely to rule:
If they rule the law is unconstitutional, the court’s justices would not strike down the law. Instead, they would say that the law as originally passed was unconstitutional. In other words, the law is unconstitutional because it is too restrictive on abortion rights. But that doesn’t mean the law is unconstitutional today because it was enacted in the past.
The court’s justices would not strike down the law. Instead, they would say that the law as originally passed was unconstitutional. In other words, the law is unconstitutional because it is too restrictive on abortion rights. But that doesn’t mean the law is unconstitutional today because it was enacted in the past. The court would find that the law passed in 2013 is constitutional. As written, the law does not allow abortion immediately after 20 weeks of pregnancy, but it does allow abortions to take place during the first trimester of pregnancy. There is a requirement that a doctor is present when an abortion is performed.
The court would return the case to the states. Because the law would become even more restrictive, many states that once banned abortion would reconsider their position.
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