New State Abortion Laws Put Supreme Court Under the Microscope

Pro-life reforms in Arkansas, Montana, Arizona raise direct challenge to Roe precedent

Activists at the 2020 March For Life / Getty Images
March 24, 2021

A bevy of state laws restricting abortion are ratcheting up the pressure on the Supreme Court to reconsider the lawfulness of the landmark Roe v. Wade decision.

Arkansas passed a sweeping ban on any abortion performed in the state with an exception for those performed to save the health of the mother. The law marks the latest in a line of states considering or passing legislation intended to chip away at legal access to abortion. Pro-life advocates say that a conservative majority on the Supreme Court represents an opportunity for a post-Roe landscape in which abortion laws are returned to state governments, rather than established by the the federal judiciary. Arkansas governor Asa Hutchinson (R.) said that his state's legislation is directly intended to prompt the court to reevaluate Roe. "I signed it because it is a direct challenge to Roe v. Wade," Hutchinson said. "I think there's a very narrow chance that the Supreme Court will accept that case, but we'll see."

Other Republican-controlled state legislatures have been moving aggressively to curtail abortion. The Arizona Senate advanced one bill to ban abortion on the basis of genetic abnormality and instill unborn babies with personhood rights under the 14th Amendment. South Dakota and Florida have banned abortions on the basis of fetal disability. South Carolina's ban on abortions after the point at which a fetal heartbeat can be detected, around 6 weeks, has already been blocked temporarily by a judge after immediate legal challenges.

The flurry of new state laws demonstrates how abortion is "not settled law to a significant segment of American society," Eric Scheidler, executive director of the Pro-Life Action League, said.

"The real significance of the Arkansas legislation is not its direct opposition to Roe and [Planned Parenthood v.] Casey, but the fact that it constitutes yet another call from the states for the Supreme Court to revisit Roe and Casey, indicating to them that these rulings have not been accepted by the American people," Scheidler said. "That's an important part of the battle to finally overturn Roe v. Wade—overcoming the Court's reluctance to tamper with 'settled law,' even if they acknowledge the flaws in the logic of Roe."

Montana lawmakers, taking advantage of a newly elected Republican governor, are advancing several measures in the state legislature. The most significant is a referendum that would change the state's constitution to define life as starting at the moment of conception, effectively banning most abortion procedures in the state. Two-thirds of the Montana House would need to approve the referendum, making it unlikely to pass, but lawmakers are also considering bans on abortions after 20 weeks and a prohibition on telemedicine prescriptions for abortion drugs.

"While we cannot be certain which cases the Court will take up, this surging momentum–the highest since Roe v. Wade–offers the Supreme Court a strong menu of options for revisiting Roe and finally taking the shackles off states," Mallory Quigley, vice president of communications at the Susan B. Anthony List, said.

Republicans' push to overturn Roe clashes with state and national Democrats' attempts to expand access to abortion. President Joe Biden has repeatedly said he wants to codify Roe into law. House Democrats have repeatedly called for an end to the Hyde Amendment, which prohibits taxpayer funding of abortion.

On the state level, Illinois Democrats are pushing to repeal a law that requires teens to notify parents if they are obtaining an abortion. New York governor Andrew Cuomo (D.) signed into law the Reproductive Health Act in December 2019. The act legalized abortion for any reason up until 24 weeks of pregnancy and legalized abortions past that point if the health of the mother or the viability of the fetus is considered at risk. Cuomo has continued to tout his work on expanding abortion rights in the midst of allegations concerning his creation of a toxic and abusive workplace. Advocates in New Jersey are calling for the Democrat-controlled government to pass a law similar to that in New York.

Scheidler said the Supreme Court has loomed large over the debate at the state level. Some lawmakers, knowing that restrictions are likely to be defeated in lower federal courts, are treating legislation as symbolic. The true test will come if the Supreme Court's new majority makes room for these laws to take effect.

"Several states like New York, California, and Illinois have already set themselves up to be abortion havens if Roe is overturned," Scheidler said. "Others, like Arkansas, Georgia, and Ohio, have directly challenged Roe with sweeping abortion bans. But will such states have the stomach to totally ban abortion if the Supreme Court ever opens the way?"