Washington Lawyer - March/April 2020 - 24

FEATURE
Court." And since the facts in the current case are so similar to the Texas
case, "it would take acrobatics to justify" supporting the Louisiana law and
overturning Roe.
Roberts is also "very political," adds Gostin. "I don't think he's going to want
to overturn Roe anytime soon, and particularly not before an election."
Other observers agree. "The Court has given no indication at this stage
that it is going to reconsider Roe," says Forsythe.
"Under any standard, once they review the actual facts in June Medical
Services, I hope they will reach the right decision," Kolbi-Molinas says.

WHAT THE FUTURE HOLDS
Perhaps the more important question is what kind of changes in abortion
rights this country will see if Roe remains the law. Both sides of the debate
agree that abortion access has diminished even though it is legal nationwide.
In his July essay in the Wall Street Journal titled "The Smart Way to
Overturn Roe v. Wade," Forsythe noted that there are more than 40
abortion cases in lower federal courts around the country, "and the
[Supreme Court] will have the opportunity to hear many of those in the
next few years." In addition, he said the Court might be more likely to
reexamine Roe "in a case with an abortion limit that is supported by a
local majority, rather than a strict prohibition on early abortions."

eight or nine years has been to push abortion out of women's reach
incrementally.
Gostin frames the abortion legal argument as one that involves equal
protection of the law rather than privacy or undue burden. "I have no
doubt at all that a woman of means, no matter where she lives or what
the law is, will be able to get a safe and effective abortion," he says. But a
tightening of abortion access will "implicate poor women, women of
color, and women who live in rural areas," he notes. "If you have the constitutional right" to abortion, he says, "it shouldn't matter whether you live
in a Democrat-controlled state or a Republican-controlled state."
Caitlin Myers, an economist at Middlebury College who examines the causal
effects of policies on access to health care, particularly abortion, has studied
how the closure of abortion clinics in Texas has imposed barriers on women
seeking abortions. Many court cases looked at travel distances of between
100 miles and 250 miles as evidence that women had less access to abortion,
"but what we find is that even going from 25 to 50 miles away can really
prevent quite a few women from getting an abortion," Myers says. At the
longer distances, many women "already can't get there," she notes, since
many are low-income and may already have childcare responsibilities at
home.
Myers says her work is providing "quantitative evidence that measures the
causal effects of distance." In other words, "it's measuring the burden and
trying to put a number on it."

Perhaps the more important question is what kind
of changes in abortion rights this country will see if
Roe remains the law. Both sides of the debate agree
that abortion access has diminished even though it
is legal nationwide.

Interestingly, the country has seen a rapid decline in unintended pregnancies in recent years, according to the Guttmacher Institute, a reproductive rights policy organization, although experts are not sure exactly
why. The research group says it could be connected to improved access
to effective contraception. Overall abortion numbers in the United States
are declining, the Guttmacher Institute has found. In a recent report, it
found that the abortion rate (the number of abortions per 1,000 women
age 15 to 44) dropped from 16.9 in 2011 to 13.5 in 2017. There was no clear
connection between abortion restrictions in states and the decline, the
report said.

Late last year, several court decisions - or lack of them - further blurred
any predictions about the future of abortion laws.

These drops might be connected to medical, or medication, abortions, in
which women take drugs to self-induce an abortion. The Food and Drug
Administration has approved a two-drug protocol prescribed by a doctor
for the first 10 weeks of pregnancy. The so-called abortion pill might
mean that abortion is happening in ways that are far harder to measure.

In early December, the Supreme Court announced that it would not
review a Kentucky law on "informed consent" requiring doctors performing abortions to show the patient an ultrasound while giving her a
detailed description of the fetus's development. In EMW Women's Surgical
Center v. Meier, doctors at Kentucky's only abortion clinic argued that their
First Amendment rights had been violated by compelling their speech.
The U.S. Sixth Circuit Court of Appeals upheld the Kentucky law, and the
ACLU had hoped the Supreme Court would hear the case on appeal.
Next, a federal appeals court panel ruled that a Mississippi law banning
abortion at 15 weeks of pregnancy was unconstitutional. Attorneys representing the state of Mississippi had argued that the law was a regulation
and not a ban. The ruling has been appealed to a full Fifth Circuit, and Gov.
Phil Bryant has said he wants to appeal the decision to the Supreme Court.
While a number of cases make their way to the courts, observers point
out that the practical aspect of abortion is changing rapidly. "You don't
have to ban abortion to effectively push it out of reach for people," KolbiMolinas says. In fact, she adds, the cumulative effect of laws over the last
24 WASHINGTON LAWYER

MARCH/APRIL 2020

A final side effect of the abortion activism at the state level is public
outcry, says Kolbi-Molinas. "When a state bans abortion, you see a
reaction," she says. At the same time, some say that no matter what laws
are currently on the books, many casual observers come away with the
overall impression that abortion is more restricted than in the past.
"When people hear a continual drumbeat" that some abortion ban was
passed, says Smith, "it starts to create a misconception that abortion
might be outlawed somewhere, or that abortion is inaccessible.
Organizations like [the Center for Reproductive Rights] have a second
job to explain that abortion is legal across the country."
At the same time, she acknowledges, "for some people today, even with
the law, abortion is out of reach."
Debra Bruno is a local journalist who writes for The Washington Post,
Washingtonian magazine, and many other publications.

Washington Lawyer - March/April 2020

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