Constitution Daily

Smart conversation from the National Constitution Center

A new test of the Roe v. Wade decision

May 17, 2018 by Lyle Denniston

 

A new lawsuit in defense of women’s right to an abortion landed in a state trial court in Des Moines, Iowa, this week, and everyone involved already has a good idea of how it will come out in Iowa’s courts. But that’s not the point. What counts more is what happens to the case if and when it reaches the U.S. Supreme Court.

At issue in the case filed by women’s rights and civil rights organizations is a new law just passed by the state legislature, banning abortion if a doctor can detect heart sounds for a pregnant woman’s fetus. Because a fetal heartbeat can be detected as early as six weeks into a pregnancy, the law would run directly counter to what is now well understood as binding law on abortion rights: a woman has a right to opt to end a pregnancy up to the point at which a fetus has developed enough that, if delivered alive, it would survive – a point somewhere between 24 and 28 weeks.

The sponsors of the new measure in the Iowa legislature know that is the law, and openly acknowledged that – if prevailing law does not change – the new ban simply will be struck down. Their explicit aim is to have the Supreme Court take a new look at Roe v. Wade and the prevailing legal understanding and, they hope, change its mind.

It has long been a goal of abortion opponents to try to ban abortion as early as possible in pregnancy, even if it would not be constitutional to simply ban all abortions, whenever performed. Various legislative formulas have been tried, such as a disputed medical claim that a fetus actually can survive if delivered alive as early as 20 weeks into pregnancy.

But the commonly-accepted medical fact that a fetus’s heartbeat can be picked up by an ultrasound device as early as the sixth week (if not earlier) has gained in popularity among lawmakers in state legislatures and in Congress who oppose abortion. Such bills are regularly introduced in Congress, but so far none has passed; the idea has gained more support in state legislatures.
Iowa’s new law says flatly that a doctor “shall not perform an abortion upon a pregnant woman when it has been determined that the unborn child has a detectable fetal heartbeat…” (The law does provide some exceptions to this ban, if the pregnancy has become a “medical emergency” or an abortion is “medically necessary.”)

That law is scheduled to go into effect on July 1, and that looming date has led to the lawsuit that was filed on Tuesday seeking a court order to block enforcement, along with a court’s declaration that the ban violates a woman’s constitutional right to end a pregnancy in the period before “fetal viability.”

The challenging organizations argued in their filings in a state trial court in Des Moines that it is often the case that a woman simply does not realize that she is pregnant when only six weeks have passed since her last menstrual period. The law’s ban, effective at just that point if heart sounds are picked up by a mandatory ultrasound test, will mean that abortion as a practical matter simply will cease to exist in Iowa, the lawsuit contended.

A state district court judge, Michael D. Huppert, has already set a hearing date of June 1 on the challengers’ request for an order to prevent the law from going into effect.
When the new case, titled Planned Parenthood of the Heartland v. Reynolds, makes its way through the state courts in Iowa, the law probably will be doomed. That’s because a state court, including the Iowa Supreme Court, does not have the authority to refuse to follow what the U.S. Supreme Court has declared as the law under the national Constitution.
The Supreme Court, of course, can abandon one of its own precedents. For years, it has refused even to grant review of a request to request the unchanging view of the majority of Justices that abortion is a right clearly protected up to the point of fetal viability.

Iowa’s legislature was not the first to enact a fetal heartbeat law as a way to challenge that view. North Dakota passed a law indicating that abortions would be banned after six weeks of pregnancy, on the premise that a heartbeat could be detected at that point. Arkansas also based a law on the fetal heartbeat test, but indicated that such sounds would be detectable at 12 weeks.

As expected, both of those laws were struck down in mid-2015, by the same federal appeals court, the U.S. Court of Appeals for the Eighth Circuit. And, in two separate orders in January 2016, the Supreme Court refused to hear separate appeals by officials of those two states that were directly challenging the long-standing view.
Of course, the simple denial of review of an appeal does not mean that the Supreme Court necessarily agreed with what a lower court had decided, but that is generally accepted as a quite strong indication that the Justices are not ready to take on the issue put before them, for whatever reason.

The Court remains closely divided on abortion questions. In its most recent decision directly in favor of the right to abortion, a June 2016 decision nullifying Texas laws limiting the way clinics and doctors may carry out such procedures, the Court was split 5-to-3. (That ruling came when the Court had only eight Justices, following the death earlier that year of Justice Antonin Scalia.)
The newest Justice, Neil M. Gorsuch, who succeeded Scalia, has not yet cast a vote on the Court directly on the abortion question.

But supporters of the fetal heartbeat approach to limiting abortion rights have grown more optimistic with the rising speculation that Justice Anthony M. Kennedy might retire, perhaps after the current term of the Court. This year is his 30th on the Court.

Kennedy was one of three Justices who combined to write the controlling opinion in 1992 in the most important abortion rights decision, other than Roe v. Wade itself, substantially reaffirming the central part of the Roe decision. Although that decision in a Pennsylvania case added new protections for fetal life, it did not disturb the fetal viability dividing line as the point at which a state could constitutionally seek to prevent abortion.

Kennedy over the years has cast some votes against claims to expand abortion rights, but he has never abandoned the core principles of that 1992 decision. And he voted with the majority of five in the 2016 decision in the Texas abortion clinic-regulation case.

If Kennedy were to retire before the Iowa fetal heartbeat case (or another like it) were to reach the Supreme Court, the Justice replacing him perhaps would hold the deciding vote on abortion rights. That, in fact, is the scenario that some opponents of abortion would like to count on.

The Iowa case is not likely to reach the Supreme Court in the current term, which is likely to finish by late June.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

 

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