Since early January, the Supreme Court has been considering whether to take up an Indiana abortion access law that goes to the core of landmark opinions like Roe v. Wade and Planned Parenthood v. Casey.
The law, signed by then-Gov. Mike Pence, has been blocked from going into effect. It has a provision that says that the state can prohibit abortion that is solely motivated by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
But so far, crickets from the high court.
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The court’s docket reflects the case has been listed for the last eight closed-door conferences where the justices discuss pending petitions, including one held Friday morning.
How the justices deal with the case could shed further light on a path forward for the newly solidified conservative majority that is facing a potential onslaught of similar petitions from emboldened conservative states and anti-abortion rights interest groups. The case also spotlights the tension that Chief Justice John Roberts faces as he balances his conservative jurisprudence with institutional concerns at the court.
That tension was evident in February when a 5-4 court blocked a Louisiana law requiring doctors to have admitting privileges at a hospital within 30 miles of the facility where the abortion is performed from going into effect. Roberts sided with the liberals on the bench to grant an emergency stay blocking the law while appeals continue.
Roberts did not explain his reasoning in the unsigned order, but it is possible that he was moving gingerly because only three years ago the Court, before the retirement of Justice Anthony Kennedy, struck down a similar law out of Texas.
Kennedy was replaced last year by Justice Brett Kavanaugh, and he dissented in the Louisiana case. Kavanaugh suggested the Court should allow the law to go into effect because the state had promised a 45 day “regulatory transition period” to determine how the law would impact clinics. He said after the transition period, if the doctors were unable to obtain admitting privileges they could come back to the high court to seek relief.
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Some believe that one reason that Roberts might have cast his vote with the liberals is because he wanted the case to come before the court on a non-emergency basis with plenty of time for the parties and the justices to consider the arguments and perhaps distinguish the Louisiana case from the Texas ruling.
But that is speculation. Roberts has not spoken publicly on the matter.
However, he dissented when the court struck down the Texas law in 2016.
“What I hope Chief Justice Roberts recognizes is that the case is a real test of the Court’s integrity and the rule of law,” T.J. Tu of the Center for Reproductive Rights, who is lead counsel in the Louisiana case and plans to ask the court to consider the law on the merits for the next term.
“Why would Roberts switch sides? Tu asked. “Maybe he recognized that the Court has already decided the issue.”
Supporters of abortion rights say the Louisiana provision is an example of a law that, without medical justification, makes it more difficult for a woman to get an abortion because it would result in the closure of clinics in the state.
They are fighting similar legal challenges at an unprecedented pace, likely because their opponents are seizing on the fact that Kennedy, who served at times as the swing vote on the issue, has retired.
“What’s different is not that they are passing these laws, the difference is that they think that the change in the make up of the court gives them a chance to test Roe v. Wade,” Tu said.
It would take the vote of four justices to take up the case. But the justices will move carefully, knowing that while it only takes four justices to grant a case, it takes five to prevail in an opinion.
There could be several reasons that the court has yet to act on the Indiana law. The justices could be deciding whether they want to grant just one provision and leave the other blocked. They may be waiting for a different case to come to the court. Or, one or more justices could be writing a dissent or a concurrence from a draft order.
In the coming weeks and months, each move by the Roberts court, particularly the votes of the chief and the newest justice, Kavanaugh will be scrutinized as the country moves to the next election. Not only did President Donald Trump vow to change the landscape of the judiciary before the last election – impacting the Supreme Court and lower courts across the country, but he also has promised to appoint “pro-life” judges.
There are laws that take a head-on approach targeting Roe, and others that seek to chip away at the court’s precedents on abortion rights.
“While some laws set up a direct challenge to Roe by imposing a ban on abortions, it’s also important to keep our eyes on the more stealth ways that states are trying to make abortion as good as illegal for thousands of women,” said Jennifer Davlen, the Director of the Reproductive Freedom Project at the ACLU, who is behind the challenge to the Indiana law.
She said the ACLU has also gone to Kentucky to stop the state from shutting down the last clinic there.
Last week, Phil Bryant, the Republican governor of Mississippi signed a bill that would ban abortions once a fetal heartbeat can be detected – typically around six weeks of pregnancy. In an address before signing the bill, he said he could remember the “exciting moments” for both his children and grandchildren when the first sonograms were taken and a heartbeat could be heard. On Thursday, the Center for Reproductive Rights filed a challenge to that law in court.
Three other states, Kentucky, Iowa and North Dakota, have tried to pass similar laws.
Indiana’s law has two provisions.
One requires that fetal remains be disposed of the same way as other human remains (i.e. burial and cremation). Critics say it is meant to stigmatize or intimidate a woman who is choosing abortion.
A separate provision says that the state can prohibit abortion that is solely motivated by the race, sex, or disability of the fetus. This provision goes to the core of Supreme Court precedent.
A panel of judges of the 7th US Circuit Court of Appeals blocked both provisions. It held that the “fetal disposition” provision must fall because it has “no rational relationship to a legitimate state interest,” and that the so called “non-discrimination provision” violates “well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.”
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Indiana is asking the Supreme Court to take up the case and revive the law.
In court papers, state Attorney General Curtis Hill Jr. argued that the so-called “fetal disposition” provision “expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus.”
And he said the state was within its rights to “prevent prenatal discrimination on the basis of race, sex and disability.”