Mar.29

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Anti-Abortion Advocates Are Not Doing Great in Court

When the Supreme Court issued its ruling in Dobbs, thus reversing Roe v. Wade and other pro-choice jurisprudence, anti-abortion activists rejoiced. They presumed that they would soon be able to end the procedure in red states, and maybe even nationwide.

Thus far, things have not been working out quite as planned. We refer specifically to the "red state" portion of the equation, where even conservative courts have been less-than-pliant when it comes to implementing the anti-abortion agenda. To wit:

• South Carolina: Many readers will recall that Roe was decided based on the right to privacy; that right isn't specified in the Constitution, but Associate Justice Harry Blackmun "discovered" it in the text of the Fourteenth Amendment. Actually, it was hiding in plain sight in the Fourth Amendment's ban on unreasonable searches and seizures. Both pro- and anti-choice legal scholars generally agree that wasn't the best argument available to Blackmun.
  
  South Carolina's constitution, by contrast, does contain an explicit right to privacy. And back in January, on that basis, the state Supreme Court overturned the state's ban on abortions after 6 weeks, finding 3-2 that the ban violated residents' right to privacy.
  
  
• North Dakota: At the moment, North Dakota's ban on abortions is on hold. That is because the conservative-dominated state Supreme Court thinks that the statute is too strict in not allowing for abortions in life-saving and health-preserving circumstances. This ruling is not final, but the state supremes felt that a pending case that makes that argument is likely to prevail on the merits.
  
  
• Oklahoma: Last week, the state Supreme Court ruled 5-4 that the state's abortion law is too strict, and that physicians must be allowed to perform an abortion "at any point in the pregnancy" when those physicians believe to "a reasonable degree of medical certainty" that denying the procedure would "endanger the woman's life."
  
  
• Wyoming: Also last week, a state judge blocked an abortion ban from going into effect, at least temporarily. In a monument to irony, the basis for the decision was an amendment to the state constitution passed back in 2010 that says that Wyoming citizens have the right to make their own health-care decisions. This amendment was the work of conservative activists who were trying to undermine Obamacare. Presumably they did not envision that they might one day be helping to protect abortion rights.
  
  
• Georgia: Yesterday, the Georgia state Supreme Court heard a case arguing that the state's ban on abortions after 6 weeks is not legal. This one's a bit abstruse; the key point of contention is whether an anti-abortion law passed while Roe was the law of the land is actually legal. The plaintiffs say that the measure would have to be passed again to have the force of law. Reading tea leaves in these circumstances is always a dodgy business, but the judges seemed to be amenable to the argument.
  
  
• Kansas: The Kansas state Supreme Court also heard a case about the state's abortion law this week. Their ruling is still pending, of course, but the justices made pretty clear that the Republican-controlled legislature has gone too far. The justices were also unimpressed with the state's argument that the "keep abortion legal" ballot initiative supported by Kansas voters doesn't actually matter.

This is not to say that the pro-choice side is winning everywhere; the Kentucky state Supreme Court allowed the state's abortion law to stand, for example. Still, the pro-choice forces are doing a pretty good job of running the same playbook that the women's suffrage movement, the Civil Rights Movement, etc. have run in the past, and slowly poking holes in abortion laws here, there, and everywhere. Between that and the efforts of pro-choice blue states, the anti-choice forces are going to learn that a nationwide abortion ban is a pipe dream, and that the Dobbs victory, while certainly significant, was rather more hollow than it seemed. (Z)