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Overturning Roe v. Wade would send issue back to states. Then it gets complicated

By Judy L. Thomas • Jul 21, 2018 at 3:00 PM

KANSAS CITY, Mo. — Almost half a century has passed, so forgive Dave Heinemann if he doesn’t remember every single detail of how things went down that long spring day in the Kansas capitol.

But one thing the former state lawmaker hasn’t forgotten is the intensity of the 1969 debate on a measure that made abortion more accessible.

“The Legislature was rewriting the state’s criminal code, and there was one section on abortion,” said Heinemann, then a Garden City Republican serving his first term in the Kansas Legislature. “That was the only section that really became a lightning rod.”

At the time, Kansas — like most states — banned abortion except to save the life of the woman. But some states had begun to propose measures to loosen the restrictions.

In the end, Kansas became one of the first states to liberalize its abortion law, allowing the procedure if three doctors agreed it was necessary to preserve the physical or mental health of the woman, in cases of rape or incest or if the child “would be born with physical or mental defect.”

Four years later, Roe v. Wade legalized abortion and granted women more rights than the Kansas statute allowed.

Now, after nearly five decades, the decision on whether abortion remains legal could go back to the states as President Donald Trump’s nominee for the Supreme Court raises the possibility of Roe v. Wade being overturned.

The outcome may not be as clear-cut as some think. Even in Kansas, which now has some of the nation’s strictest abortion laws. Sending abortion regulation back to the states would likely result in a patchwork quilt of laws across the country.

Four states already have “trigger laws” that would automatically ban abortion if Roe is overturned, according to the Guttmacher Institute, a research organization that supports abortion rights.

Another 17 states have laws on the books that could be used to restrict the legal status of abortion, Guttmacher says. Ten of those states have retained the abortion bans put in place before the 1973 Roe decision that could be enforced if Roe is reversed and their legislatures don’t take action to change them. And seven states — including Missouri — have laws that declare their intent to restrict abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe but would require legislative action.

“I think it would be one of the biggest debates in the state legislature ever,” said Samuel Lee, director of Campaign Life Missouri. “The debate would probably even include whether it should go to a vote of the people.”

To prevent further dismantling of the provisions established in Roe, nine states have passed laws that protect the right to choose abortion prior to fetal viability or when necessary to protect the life or health of the woman, according to Guttmacher. Abortion rights groups note, however, that such state-level Freedom of Choice Acts would be nullified if Congress passed a nationwide abortion ban that was upheld by the Supreme Court.

Lee and others say they don’t think the Supreme Court would reverse Roe right away if conservative Judge Brett Kavanaugh is confirmed. It’s more likely, Lee said, that the court would simply uphold state laws already on the books that regulate abortion.

“But let’s say for argument’s sake that Roe is overturned and it’s returned completely to the states,” he said. “On a state-by-state basis, there would be various laws passed that would regulate or restrict abortion.”

Currently, Lee noted, there’s no case before the Supreme Court that could be used as a means to overturn Roe.

“Are there some cases in the pipeline? Sure,” Lee said. “Missouri has some cases in the 8th Circuit right now. That’s a potential one, depending on how the Circuit Court rules. But it could be from Missouri, it could be Louisiana, Mississippi, Arkansas, Texas. If the court wants to take a case, it’ll take a case. But it’s a ways away.”

Though Roe v. Wade invalidated the 1969 Kansas law, the statute remained on the books for decades. But in 1992, with the Supreme Court poised to issue a ruling in a Pennsylvania case that those on both sides thought would overturn Roe, abortion rights supporters pushed legislation at the state level that would keep abortion legal in most cases.

Kansas lawmakers passed such a bill, which effectively repealed the 1969 law. Since then, however, a conservative shift in the Legislature has paved the way for the passage of numerous abortion restrictions.

Even so, abortion opponents in Kansas aren’t celebrating the possibility of a Roe reversal. They’re more concerned, they say, about what’s happening in the state Supreme Court. That’s because one of the Kansas laws, a ban on a commonly used second-trimester procedure called dilation and evacuation — which abortion opponents call “dismemberment abortion” — is tied up in the courts.

After the law passed in 2015 — the first of its kind in the nation — a Topeka trial court ruled that it was unconstitutional, saying the Kansas Constitution guarantees a woman’s right to an abortion. The state Court of Appeals deadlocked in a 7-7 vote, and the state Supreme Court heard oral arguments on the case in March 2017 but has yet to issue a decision.

If that court agrees, abortion foes say, all of the state’s abortion laws could be wiped out.

“Even if Roe were to be overturned really soon, which is unlikely in any prospect, it won’t matter to Kansas if our state Supreme Court rules the way we expect, which would put the strictest version of Roe into the state constitution,” said Mary Kay Culp, executive director of Kansans for Life.

“If our Supreme Court says that the people’s representatives have no voice on this issue, it has the potential to overturn every pro-life law that has passed in Kansas.”

Culp said if the court rules against the “dismemberment” ban, Kansans for Life will propose a constitutional amendment that will say the Kansas Constitution does not contain a right to abortion.

“But getting something like that passed can take years,” she said.

Culp said the Kansas case illustrates how abortion rights groups have shifted their strategy in recent years and now are challenging laws in state courts rather than federal courts in hopes of getting the right to an abortion placed in state constitutions.

“The abortion attorneys have been working on states with more liberal judges to try and get those rulings,” she said. Four of the seven Kansas Supreme Court justices, she said, were appointed by former Democratic Gov. Kathleen Sebelius, an abortion rights advocate.

The strategy has had some success. NARAL Pro-Choice America says 15 states now have constitutions that provide greater protections than the U.S. Constitution for a woman’s right to choose.

While abortion rights groups are focusing on state constitutions, abortion opponents are working to pass legislation that could ultimately end up before the Supreme Court to serve as a vehicle to overturn Roe v. Wade.

Americans United for Life explained the strategy in a July 9 email that included “talking points” from president and CEO Catherine Glenn Foster.

Her organization is one of several, Foster said, that offers model legislation on abortion that consists of “carefully crafted texts that help pro-life state legislators push the boundaries of legal abortion restrictions in their areas.”

“This kind of legislation is designed to protect women now, to save lives now, to have that immediate, on-the-ground effect,” she said. “But it also has the advantage of queuing up court challenges and seeding cases that could eventually make their way to the Supreme Court. If that body eventually overturns Roe, AUL’s legislative work will have created a framework so that there will be life-affirming state laws already in place.”

The timing to implement the plan couldn’t be better, said Foster, who calls the upcoming appointment of a new Supreme Court justice “a seminal moment for America.”

“If there were ever a time to believe that we will abolish abortion in our lifetime,” she said, “it is right now.”

Culp said some abortion opponents would rather take an all-or-nothing approach and ban all abortion immediately.

“But we believe in a much more strategic plan that won’t be thrown out of court the next day,” she said.

The Iowa Legislature recently passed what could become the most restrictive law in the country — a ban on most abortions after a fetal heartbeat is detected, or at about six weeks into a pregnancy. The bill was set to go into effect on July 1 but is temporarily on hold while a legal challenge winds its way through the courts. Supporters of the bill wanted it to be challenged in hopes that it would advance to the Supreme Court and lead to a reversal of Roe v. Wade.

But last month, abortion opponents suffered a setback when the Iowa Supreme Court struck down a less-restrictive abortion law requiring a 72-hour waiting period before obtaining an abortion. In a 5-2 decision, the court said that women have a “fundamental right” to an abortion under Iowa’s constitution. The three-day waiting period, the court ruled, violated the due process and the equal protection clauses of the Iowa Constitution.

That decision prompted attorneys representing the abortion doctors in the Kansas case to file a brief on Monday. The brief referred to the Iowa ruling, saying it supported the Kansas doctors’ argument “that the right to abortion should be recognized as fundamental and restrictions on that right should be subject to strict scrutiny.”

As most abortion opponents rejoice over Trump’s selection of Kavanaugh to replace the retiring Justice Anthony Kennedy, it’s next to impossible to find any abortion rights advocates who are pleased with the nomination.

“Brett Kavanaugh is a sure-fire vote to end the protections of Roe, criminalize abortion, and punish women just as the president promised,” said Ilyse Hogue, president of NARAL Pro-Choice America. “People know what is at stake in this fight. Kavanaugh would decimate reproductive rights, voting rights, workers’ rights, LGBTQ rights, and immigrant rights for generations.”

NARAL and many other organizations that support abortion rights are planning a nationwide “Stand for Justice” rally on Aug. 26 — Women’s Equality Day — to demand that senators reject Kavanaugh’s nomination.

“Donald Trump has long promised to only nominate a justice who will end Roe v. Wade and criminalize abortion,” NARAL said. “Trump has found his man in Brett Kavanaugh. Which is why dozens of organizations and thousands of people are ready to take to the streets on August 26th.”

One expert on abortion politics thinks that if Kavanaugh is confirmed, he would more likely want to chip away at Roe rather than reverse it.

“I don’t think Roe is going to fall, but my sense is that states are going to get a lot more leeway to regulate abortion than they already have,” said Glen Halva-Neubauer, a political science professor at Furman University in South Carolina who has studied abortion policy for decades. “I think that virtually every restriction that comes to them is going to be affirmed.”

One thing many people don’t realize, he said, is how restricted the right to abortion already is.

“People say, ‘Oh, no, Roe might fall,’” he said. “I’m like, ‘Wake up and smell the coffee.’ The last seven to eight years have been critical in terms of putting up more and more restrictions.”

The erosion of Roe actually began in 1980, Halva-Neubauer said, when the Supreme Court ruled in Harris v. McRae that the Hyde Amendment of 1976, which banned the use of federal funding to pay for abortion through Medicaid, did not violate the U.S Constitution.

“And I think from that moment on, we went down a road that says, well, there’s a right to an abortion, but your financial circumstances are going to be a limiting factor in whether you can have access to that right,” he said.

No matter what happens with Roe v. Wade, both sides say, it’s doubtful the issue will ever be settled.

“I use as an analogy the Second Amendment to the Constitution — the right to bear arms,” Lee said. “That debate still hasn’t ended. And it’s been in the Constitution for two hundred and how many years?”


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