Roe v. Wade Is About to Face Its Biggest Challenge Yet

Lawyers from the Center for Reproductive Rights filed an emergency application asking the Supreme Court to issue a stay on the law on Monday, after judges on the Fifth Circuit Court of Appeals sided with the state of Louisiana. The 2014 law requires abortion clinics to have admitting privileges to local hospitals, a mandate the Supreme Court ruled was unconstitutional in its 2016 ruling on Whole Woman's Health v. Hellerstedt when Texas passed a similar mandate.

If Supreme Court justices fail to issue a stay in this latest case—June Medical Services v. Gee—they will fail to uphold their own precedent, effectively sending the signal that the court will permit restrictions on abortion rights it once deemed a clear violation of the Constitution.

"I would say this is very serious," Elizabeth Nash, the senior state issues manager at Guttmacher Institute, told Broadly Tuesday morning. "Justices would be sending the message that not only can a state enact abortion restrictions that have been specifically struck down by the US Supreme Court, but that the court is not going to uphold its own ruling, and that further restrictions on abortion would be permissible under this more conservative incarnation of the court."

Under President Donald Trump, Republican lawmakers have repeatedly tested Roe v. Wade with blatantly unconstitutional state legislation, looking forward to the possibility of appealing it all the way to a Supreme Court that has been shaped by Trump's vision for overturning the landmark abortion rights ruling.

"States may be producing laws which, if upheld, may be the vehicle for weakening Roe if not providing an occasion to overturn it," Michael Gerhardt, a constitutional law professor at University of North Carolina at Chapel Hill, told Newsweek in November 2017, after Mississippi lawmakers passed a 15-week abortion ban. The strategy of these laws, he said at the time, is to narrow "the window for abortion until it gets to the point where it's closed entirely."

For women in Louisiana, that "window" has already been significantly diminished by other anti-abortion laws, such as those requiring women to receive state-mandated counseling, undergo an ultrasound and then wait 24 hours before obtaining an abortion. Should the Supreme Court fail to halt the 2014 law making hospital-admitting privileges requisite for abortion clinics, Nash says it would likely leave women with one sole provider—not one sole clinic, one single person who can legally administer abortions—for the entire state.

"One facility cannot meet the needs of an entire state, so what will patients do?" Nash said. "Some women may be able to travel, but that means traveling to another state, navigating the restrictions in that state, taking time off of work, arranging for childcare and being away from home for multiple days. All of that is a huge burden and that's without even talking about the financial cost."

Nash said she considers the Louisiana law to be the biggest threat to Roe at the moment, though it's hardly the only one. Supreme Court justices are still in the midst of deciding whether to take on two other abortion-related cases, one dealing with an Alabama law banning a common second-trimester abortion procedure, and a second, having to do with an Indiana fetal burial law. Not to mention several other laws making their way through the legal system and soon to the Supreme Court.

"The court is going to have multiple opportunities to revisit abortion rights over the next several years," Nash said. "In this case, we don't know what the court is going to do. But it would be a serious blow to Roe v. Wade."