Is the Tide Turning on Abortion Law?

More states are taking up the gauntlet and passing or considering greater abortion restrictions, including outright bans of the procedure. Herein, I go through the most prominent and near-term changes state-by-state and then discuss the likely result.

South Dakota

South Dakota is leading the way. Its legislature has passed and its governor has signed a law banning all abortions except when the mother’s life is in danger or she is faced with substantial bodily harm. The bill is intended to be a direct assault on Roe v. Wade and the legislature has appealed to the latest scientific findings to support their actions. "DNA testing now can establish the unborn child has a separate and distinct personality from the mother,” said a sponsor of the bill. “We know a lot more about post-abortion harm to the mother."


Mississippi seems next in line. One house of its legislature has already passed a law which bans abortions except in cases where the life of the mother is in danger, and in cases where the pregnancy resulted from rape or incest. Prospects look pretty good for passage.


The State Senate of Tennessee passed a proposed amendment to the state constitution which would remove its right to abortion. In their own version of Roe v. Wade case law, the Tennessee Supreme Court has found that the state constitution provides an even broader right to abortion than that established by Roe. If passed by the state assembly, the voters of Tennessee will then have the opportunity to vote on whether they want to remove the right to abortion from the state constitution. The goal of the sponsoring legislators seems to be to take the issue away from the state courts and place it in the hands of the elected branches of state government. No outright ban would come into effect even if the amendment is adopted and the federal courts and federal right to abortion would still be an obstacle.


The governor, Matt Blunt, has called a special session of the legislature in part to consider new pro-life legislation. The laws under consideration have to do with parental consent and some health regulations on abortion providers.

Also, I do not know if this bill will be voted on soon, but a Democratic state law maker introduced it and it would ban most abortions.


Indiana Bill 1096 is under consideration and would ban abortion except when the woman’s life would be in danger or her health is threatened by “substantial permanent impairment.” The bill’s sponsor bluntly says it is a direct assault on Roe v. Wade. In his own words, "On an issue that's this personal, it should be decided as local as possible," the assemblyman said, "We either want these procedures, or we don’t…and I don't."

Another bill that has a greater likelihood of passing this term is a measure that would require informed consent (in writing), meaning that the abortion provider would have to inform the woman seeking an abortion that human life begins at conception and that the unborn fetus may feel pain during the abortion. The bill has a lot of Democratic support. According to State Senator Mike Delp, “this issue is the human-rights issue of our day.”

Ohio, West Virginia, and Kentucky are also said to be considering new legislation against abortion, but I have not been able to track down the specifics of such attempts to see how serious they are or how soon the respective legislative bodies may vote on them.

What is behind these legislative actions?

It would seem that Pro-Life legislators and governors in many states have been emboldened by the appointments of John Roberts and Samuel Alito to the Supreme Court. Assuming that Chief Justice Roberts votes like former Chief Justice Rehnquist and that Justice Alito is more conservative than former Justice O’Connor, the Court likely has moved in a more conservative direction. However, there appears to be a five-Justice majority to affirm Roe, assuming that the liberal Justices Breyer, Ginsburg, Stevens, and Souter vote as expected, and that swing-vote Justice Kennedy votes – as he has done in the past – to affirm Roe v. Wade.

However, we can count on these states to emphasize that advances in medical science have given the state a more persuasive and compelling interest in protecting unborn human life. We can also count on them to gear their arguments directly at Justice Kennedy – who is Catholic and was once thought to be Pro-Life – in an attempt to get him to switch. Another important part of the argument will be the value of precedent and how deferential justices like Roberts and Alito will be to a decision that is “established law” but with which they disagree.

Will Kennedy change his vote? At least one Constitutional Law professor thinks it is possible and makes the interesting point that Justice Kennedy split with Justice O’Connor and voted with the minority that would have affirmed a Nebraskan ban on partial-birth abortions. Does this indicate a shift in perspective or simply a distinction in Kennedy’s mind as to the more viscerally objectionable procedure? Additionally, we should not dismiss out of hand the possibility that Chief Justice Roberts and Justice Alito will prove to be more persuasive advocates to their colleagues for reversing or limiting Roe v. Wade than their predecessors.

All this assumes, of course, that the issue will reach the Supreme Court. District Courts and Appellate Courts are likely to strike down quickly the new laws. After that, it will be up to the Supreme Court to decide whether they are interested in taking the issue up again. I think it unlikely that we will see any of these challenges significantly affect abortion law barring a change in Justice Kennedy’s heart or the appointment of another new Justice. One thing is sure, however. The Pro-Life movement is flexing its muscle and showing that it still has influence and life, especially in certain parts of the country. Ironically, they may have made the next Supreme Court nomination – assuming it is by a Republican – more difficult, because everyone will know that Roe v. Wade is truly hanging in the balance.

UPDATE: There is an interesting article in The Weekly Standard about Chief Justice Robert's first few months on the Court. Early returns indicate he may be more influential on his fellow Justices than was Rehnquist, and that his making more time for the discussion of cases amongst the Justices may lead to more considered opinions.


Sleep-Deprived said…
Thanks for posting such a comprehensive article. I also really enjoyed reading the WS article about Justice Roberts.

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