Later abortion could be new focus of attacks after recent Supreme Court ruling

Last week, another conservative attempt to restrict abortion failed when the Supreme Court struck down Louisiana’s unnecessary admitting privileges law. It’s a loss that may embolden anti-abortion activists to be even more aggressive about getting abortion bans passed — particularly when it comes to later abortions. 

Given the current makeup of the Supreme Court, with hardline anti-abortion Justice Brett Kavanaugh having replaced retired Justice Anthony Kennedy’s swing vote, conservatives expected this case to be a slam dunk victory. Kavanaugh did deliver, but since Chief Justice John Roberts sided with the liberals, the anti-abortion movement suffered a setback. 

It’s a setback they’re furious about. Live Action President Lila Rose said that the decision was “a reminder that the lives of an entire people group have been wrongly placed in the hands of nine lawyers, several of whom abuse their power to violate the human right to life.”

James Bopp, Jr., the general counsel for National Right to Life, said the decision “demonstrates how difficult it is to drain the D.C. swamp and how important it is that President Trump gets re-elected so that he may be able to appoint more pro-life justices.” Sen. Josh Hawley (R-MO), a former clerk for Roberts, called the decision a “disaster.”

That fury is likely to be channeled into a greater devotion to restricting abortion at the legislative level, as anti-abortion activists have expressed they feel the Supreme Court has abandoned them.

Marjorie Dannenfelser, president of anti-abortion group Susan B. Anthony List, called the decision a “cruel blow” and went on to praise “lawmakers in Tennessee and Mississippi [who] took bold strides for life.”

The “bold stride” in Mississippi that Dannenfelser is referring to is the state’s passage of a “reason ban” that limits the reasons for which people can seek abortions. That bill imposes criminal penalties on doctors who violate the law, one which requires providers to interrogate their patients about their reasons for seeking medical care.

Mississippi also bans abortions later in pregnancy, thanks to an 18-week abortion ban, while Tennessee, the other state praised by Dannenfelser, just passed a bill that bans abortion at as early as six weeks. 

Attempts at imposing gestational age bans may also have another appeal to anti-abortion activists: They haven’t yet been struck down by the Supreme Court. 

The Louisiana case, June Medical v. Russo, involved a targeted regulation of abortion providers, also known as a TRAP law. Those are laws that impose what abortion rights advocates say are medically unnecessary regulations on clinics where abortions are performed or on the physicians who provide them.

In Louisiana’s case, this was an admitting privileges law, which required physicians who perform abortions to have an arrangement with a nearby hospital to admit patients if there was a complication. 

Since the majority sided with the clinics in Louisiana, it ostensibly bars other states from imposing similar admitting privileges laws. 

With those types of restrictions being deemed unconstitutional, anti-abortion activists will need to turn their attention to the passage of other types of laws, such as banning later abortions, imposing mandatory waiting periods, and bans on certain types of methods of abortion.

Indeed, Chief Justice Roberts’ concurrence in June Medical made clear he’s fine with a whole host of restrictions on the right to have an abortion. 

Laws against later abortions are already a confusing patchwork, different in nearly every state. According to the Guttmacher Institute, which tracks laws about abortions, 22 states already have bans at around 22 weeks. Anti-abortion activists have gone after later abortions with particular zeal, implying, contrary to what available science or the law says, that later abortions are murder and that clinics perform later abortions only because they are financially invested in doing so. 

Anti-abortion activists have also worked to equate abortions later in pregnancy with babies being “born alive” after a “botched” abortion. In reality, there are complex and necessary reasons people choose abortion later in pregnancy, from learning that their fetus will be unable to survive outside of the womb, to having experienced delays in getting abortion care thanks to multiple barriers. 

Anti-abortion groups lost the recent battle over admitting privileges, but, as Lila Rose framed it, they believe they “can win the war” and eradicate abortion entirely. To them, making later abortions more difficult to obtain is just another front in that war. 

Published with permission of The American Independent Foundation.