WASHINGTON (CN) — Before the Supreme Court has made its decision in a challenge to the decades-old precedent that gave women the right to abortion, state legislatures across the country have begun operating under the assumption that Roe v. Wade is no longer the law of the land. But with state legislatures and the court acting against the wishes of the majority of Americans, Roe’s undoing could signal bigger problems.
In December the court heard an all-out challenge to the 1973 precedent that affirmed access to abortion as a constitutional right. Roe has been challenged since its inception, but this moment is different. With a 6-3 supermajority-conservative court, it seems that at the very least abortion access across the country will be limited further. While predicting what the court will do is often a fruitless effort, state legislatures are going all in on what appears like a forgone conclusion.
“Conservative legislators are flooding the zone with abortion restrictions, and they run the gamut from complete bans to restrictions on medication abortion,” Lindsay Langholz, director of policy and program at the American Constitution Society, said in a phone call.
The challenge the court heard on Roe from Mississippi stems from a law that would ban all abortions after 15 weeks. One option for the court could be to stick to that law and limit all abortions after 15 weeks — a marked decrease from the currently in-use viability line, which is around 24 weeks. States like Florida, Arizona and West Virginia are already passing laws to this effect in anticipation of the court’s ruling.
“You can tell that they expect the Supreme Court to uphold Mississippi's 15-week ban, and they want to be ready to go as soon as that kind of a limit has been approved and blessed by the court,” Jessica Arons, a senior policy counsel for reproductive freedom at the ACLU, said in a phone call. “So they're trying to cut off care immediately in that fashion. That's their most conservative bet; they think that chances are very high that they'll get at least that much.”
Experts say the reaction from legislatures to the court’s perceived actions is rare.
“The court for over six months has chosen not to uphold Texans' access to their constitutional right to abortion, and legislators have taken note,” Langholz said. “They have taken it as a signal to pass the bills that they need to pass so that they are in a position to ban as much abortion access as possible when the court decides and that is a pretty unusual situation that we're seeing.”
The court’s actions in the Mississippi case are being closely watched, but some states are taking their cues from another case the court tackled this term around a Texas abortion ban. A Texas law that banned abortions after six weeks and created a bounty-hunter scheme to round up anyone who assisted in violations of the ban has spurred copycats. While the court advanced a narrow challenge to the ban, it also allowed the law to stay in place as the case pushed ahead. The Texas Supreme Court then squashed the narrow grounds on which the court said the case could proceed.
So while the justices’ official ruling said a challenge to the controversial law could move forward, the reality on the ground is that Roe has been nullified in Texas for over six months.
“The right to abortion doesn't meaningfully exist for people in Texas right now and it hasn't for six months,” Arons said. “To the extent states are able to copy that tactic and the Supreme Court continues to turn away and ignore it, that is going to be the case for greater and greater numbers of people throughout this country.”