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What happens next after the Supreme Court’s signal on abortion rights


Such a scenario would further reinforce an environment where a person’s right to access proceedings depends on the state in which she lives, as state legislatures and state courts will determine the extent of restrictions. abortion regime.

Dozens of states already have in the books so-called “trigger” laws, where the abortion ban will go into effect when the Supreme Court’s decision overturns Roe. As legislators are considering passing new restrictive laws following the Supreme Court decision, major legislative and legal battles are raging in anticipation that the Supreme Court is about to give the green light to the Supreme Court. severe restrictions or outright bans.

“There’s going to be a lot of fighting in the states, and then waiting to see what the courts do, and it’s all going to be very tense,” said Elizabeth Nash, senior director of state affairs at the Guttmacher consultancy. nationwide”. The Institute for Abortion Rights.

When will the court announce its decision in this case?

The most likely scenario is The decision was made in June, as the courts usually issue the most important opinions just before the end of the summer break.

The incident, Dobbs suing Jackson Women’s Health Organization, stemmed from a lawsuit by abortion providers opposing a 2018 Mississippi law that banned abortions after 15 weeks of pregnancy. The ban is currently on hold due to lower court orders citing current Supreme Court precedent that protects the right to abortion until the fetus is alive, about 24 weeks into the pregnancy.

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It’s also possible that the judges will issue an opinion sooner in a separate abortion case, coming from Texas, which would hint at the position the court is heading towards Roe v. Wade. In the Texas case, regarding the state’s six-week ban, the judges considered the procedural mechanism the state was using to enforce the injunction, so the dispute did not require them to resolve Roe. But the court’s lack of urgency in handling the Texas case is seen by some as a sign that a conservative majority may be planning to oust Roe as soon as next year.

What if the Supreme Court overturned Roe?

If Roe is fully reversed, states across the country will be able to implement outright bans on abortion, as well as other types of restrictions previously blocked under Roe and other Supreme Court precedents. For states that already have laws in place, how long it takes for those laws to take effect will depend on their design and the clarity of the court’s position.

The activation laws of some states provide for the role of the state attorney general to certify that the court opinion meets the conditions set forth in the law to trigger the injunction. Some trigger laws also provide specific timelines for when the bans will go into effect after the ruling.

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“If (opinion) isn’t so clear, state AGs will have a really important role to play in helping the legislature and governor understand what the ruling means for state law.” state”, Katie Glenn, government affairs adviser to the US anti-abortion group United for Life.

In addition to the 12 states with activation laws, several other states with bans or other extreme types of restrictions restricting abortions after early pregnancy are currently blocked by courts under Roe.

“There will be a lot of governors and representatives who are happy to go back to the courts and lift some of those bans,” Glenn said, pointing to Arkansas’ successful efforts to reinstate blocked laws. after opinion written by Chief Justice John Roberts in one case 2020.

How long does it take for post-Roe bans or restrictions to take effect?

While some laws already in place can go into effect quickly, Glenn said, others will face additional rounds of litigation that can take years to resolve.

“There will be a lot of states and a lot of courts, including states like Florida, Iowa and Montana, where their state Supreme Court will probably have to weigh in,” Glenn said.

Other states that don’t have limits or bans on books could quickly overtake them. States like Florida, Indiana, Montana, Nebraska and Wyoming – where Republicans control the governorship and legislature – appear poised to act quickly in the event of Roe’s ouster. Depending on the timing of the court’s opinion, some states may consider convening special legislative sessions to do so.

What kind of new legislation could be passed?

Some GOP-controlled states may not ban abortion, but will instead pass other types of restrictions that may not be delayed in court under Roe. Glenn pointed to the type of clinic regulation that was at the heart of a 2016 Supreme Court case where the court overturned a Texas clinic regulation.

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Republican lawmakers have expressed particular interest in stopping medical abortions, especially in light of a tentative move by the Biden administration to relax FDA regulations on methods of abortion. that law.

“Medical abortion has really become a mainstream method of abortion over the last 10 years, all the way towards conservative states placing more restrictions on it,” Nash said.

Will it just be the red states affected?

The consequences of a Roe reversal will not only be felt in the red states but will then implement new restrictions where those seeking abortions may need to travel great distances to get to the nearest clinic. Best.

Blue states that want to maintain access to the procedure are likely to see a spike in out-of-state patients, which in turn could affect how easily their residents get to the procedure. any.
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According to analysis from the Guttmacher Viện Institute Assuming that 26 states would ban abortion if Roe was reversed, Illinois would provide the closest clinic to about 9 million women in the states most likely to ban abortion. The fallout from Texas’ six-week ban shows the impact on abortion-friendly states if other states are allowed to ban the procedure.

Service providers in Oklahoma said in the Texas lawsuit that the flood of Texas patients seeking appointments at their clinic has dramatically increased the time it takes to secure an appointment. Prior to the ban, appointments could be made several days in advance; after the Texas law went into effect, the waiting period lasted up to three weeks, according to court records.

Is it possible that the court did not deal with Roe? What happens then?

Despite Wednesday’s signals from five of the judges that they are inclined to overturn Roe, it’s still possible the court took a ostensibly middle-of-the-road approach that would give states more flexibility to limit restrictions. procedure without completely abolishing the existing precedent. That is route Roberts seems to favor because the.

Roberts appears to be hinting at an idea that would uphold Mississippi’s ban with a reworked standard around people having a “reasonable choice” to get the procedure. Based on the judges’ comments, there was not much interest in the rest of the court for adopting that approach.

However, the Supreme Court has created surprises in the past. If Roberts were to object to such a compromise, it would still represent serious damage to Roe and open the door to all kinds of procedural limitations.

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A ruling that goes against the viability court’s precedent, Nash said, “really takes away the power of the (Roe) decision and leaves us with a lot of unknowns and potentially a lot of limitations.” than.”

“We may be looking at more restrictions on how abortion clinics are administered, or limitations that make care harder – such as even longer periods,” Nash said. , “or multiple rounds to access different methods of abortion. ”

This context will lead to complex and contradictory legal battles, as any ambiguity in this presumptive new standard will be interpreted differently by different judges. Judges in parts of the country where the federal courts are more right-leaning may tend to uphold almost any restriction to whatever intermediate standard Roberts is thinking, while judges Others may interpret it in a way that favors abortion rights.

What happens while we wait to see what the courts do?

With signs that the courts are doing something positive to withdraw abortion rights, advocates on both sides of the issue are looking to lay the groundwork for what happens next. Several state legislatures may seek to pass the legislation in their sessions next spring in anticipation of a Roe reversal. In the blue states, it could be accessibility-enhancing bills — like the New Jersey proposal that would relax certain abortion regulations and require insurance for the procedure.

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“I can see more laws in progressive states doing what they can to protect abortion rights,” Nash said, as she pointed to such a plan being announced by Colorado Democratic lawmakers. after Wednesday’s hearing.

Another place to watch is how the battle for abortion rights is shaping up in the state courts. If the Supreme Court says there is no protection in the U.S. Constitution for the right to abortion, then state constitutions – especially those that contain provisions relating to privacy or equality – would be a tool used by abortion rights advocates to fight restrictions in court.

Several red states have amended their constitutions to make it clear that they do not protect abortion rights, and states like Kentucky and Kansas have sought to do so in next year’s ballot initiatives. In the event that the question of state constitutional protections of abortion rights remains unclear, expect battles in state courts to test lawmakers’ ability to limit due process.

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“There are several lawsuits in state court that will have a profound impact, pointing to litigation already underway in Montana over measures passed this year to reduce access,” Glenn said. abortion ..

“A Roe reversal would help them, but eventually they’ll need to argue that in the public system,” Glenn said.

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