Washington Lawyer - March/April 2020 - 23

FEATURE
obstacle in the way of a woman seeking an abortion for a fetus that
is not yet viable.

who performed them to be charged with criminal homicide, punishable
by death.

Another challenge to Roe came in 2007 with Gonzales v. Carhart. In this
case, the Court upheld the 2003 federal ban on partial-birth abortion,
saying that the ban on these late-stage abortions did not impose an
undue burden on a woman's right to an abortion.

A more recent bill introduced in Ohio would charge doctors with
"abortion murder" if they did not try to re-implant an aborted ectopic
pregnancy - an embryo that is growing inside of the fallopian tubes
rather than in the uterus. Experts say this procedure is medically impossible. The bill would also create a crime called "aggravated abortion
murder."

In May 2019, in Box v. Planned Parenthood of Indiana and Kentucky, the
Court struck a compromise on a 2016 law out of Indiana, upholding the
regulation relating to the disposition of fetal remains but denying certiorari on the question of whether the state may bar abortions if the choice
is based on a "potential diagnosis" of Down syndrome or another disability or based on gender or race.
In essence, although Roe and Casey remain in place, states have been
permitted to impose various limits on abortion. Gostin, who co-authored
a recent article in the Journal of the American Medical Association about
state-level restrictions, says new constraints increased from an average
of 14 per year from 1983 to 2010 to an average of 57 per year from 2011
to 2015. The upsurge, in part, comes from the Republican takeover of
many state legislatures in 2011.
According to Alexa Kolbi-Molinas, senior staff attorney with the
Reproductive Freedom Project of the American Civil Liberties Union
(ACLU), there have been 483 new abortion restrictions in the United
States since 2011.
The boldest challenges to abortion rights have frequently been blocked
in both the lower courts and the Supreme Court. In the 2016 case Whole
Woman's Health v. Hellerstedt, the Supreme Court struck down a Texas law
that required doctors to have admitting privileges at a state-authorized
hospital within 30 miles of the abortion clinic.

A WAVE OF NEW BANS
In the past year, abortion rights and restrictions have taken center stage
in many state legislatures. One of the more extreme laws bans abortion
after eight weeks of pregnancy or after a heartbeat has been detected.
Abortion rights advocates call these laws outright bans because many
women do not even know they are pregnant before six or eight weeks.
"People stopped hiding behind the incremental approach and passed
all-out bans," says Kolbi-Molinas. Those states include Alabama, which
passed a total ban, and Georgia, Kentucky, Louisiana, Mississippi, Ohio,
and Missouri, which enacted abortion bans at six to eight weeks of pregnancy, based on when doctors could hear a heartbeat. None of these
bans have gone into effect, and they face battles in lower courts.
Prior to 2019, North Dakota and Iowa had also passed six-week bans,
notes Elisabeth Smith, chief counsel of the state policy and advocacy
team at the Center for Reproductive Rights. Those laws were struck down
in court.
Other limitations have focused on abortion clinics, with states requiring
them to have transfer agreements, or admitting privileges, at a local
hospital. In addition, states have introduced laws such as parental notification requirements for minors and prohibition of abortion when the fetus
might be determined to have Down syndrome or another genetic
problem. Earlier in 2019, Texas considered - and rejected - a bill to
criminalize abortion. The Abolition of Abortion in Texas Act would have
made it possible for women who underwent abortions and the doctors

"This really pulls the curtain back" on what the anti-abortion constituency
wants, Smith says. "That is a thing we should all be talking about. That is
way outside of the mainstream." Eight states now have "trigger laws,"
which would immediately ban abortion if the Supreme Court does
overturn Roe.
While these actions are happening in conservative states, several liberal
states have moved in the opposite direction. Maine, for instance, voted
in June to allow advanced practice nurse practitioners and physician
assistants to perform some types of abortions. Maine also passed a law
that required any health insurance plans that cover maternity care to
cover abortion as well. New York in 2019 passed legislation allowing
abortions after 24 weeks if there is "an absence of fetal viability, or if
the abortion is necessary to protect the patient's life or health."
In fact, in some states with a Democratic majority, a position on abortion
rights is becoming a litmus test for those seeking to become attorney
general. The Democratic Attorneys General Association announced in
November that it would not endorse any attorney general candidate
who does not explicitly support abortion rights. Candidates seeking its
endorsement would have to make a public statement in support of
reproductive rights.

PRESENT CHALLENGE BEFORE THE COURT
This brings us to the current case before the Supreme Court. June Medical
Services is a somewhat surprising case for the Court to take up, since
experts say it is almost identical to Whole Woman's Health.
The Supreme Court ruled that the 2016 law was unconstitutional, but
Forsythe of Americans United for Life argues that the Louisiana case
before the Court is different. In Louisiana, he says, the law has not had
the same impact in shutting down clinics as it had in Texas.
After the Texas law was overturned, Louisiana was the only state to
continue pushing through the courts for its own decision, says Smith
of the Center for Reproductive Rights.
The National Center for Lesbian Rights filed an amicus brief to the Court
on behalf of 24 coalition members, arguing that the closure of more
clinics would have a broader impact beyond restricting abortion access.
Abortion clinics provide "health care services vital to the LGBTQ community," the brief argues, "including primary care and hormone therapy
for transgender people" who often experience discrimination in the
health care system outside of clinics. Another amicus brief supporting
the plaintiffs came from more than 365 legal professionals, including
attorneys, law professors, public defenders, prosecutors, retired judges,
and law students.
Gostin of Georgetown Law predicts that the Court will avoid overturning
Roe, particularly because Chief Justice John Roberts is "very much an institutionalist. He cares deeply about the neutrality and reputation of the

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Washington Lawyer - March/April 2020

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