- The Washington Times - Sunday, October 6, 2019

The Supreme Court will wade into a stack of abortion cases during its session that opens Monday, giving the conservative-leaning bench a chance to chip away at Roe v. Wade, the landmark ruling legalizing abortion nationwide.

The justices announced Friday that they will consider a challenge to a Louisiana law that adds restrictions on abortion providers. They also are facing scores of cases brought by pro-life groups eager to get a case in front of a high court that has tilted right with Trump appointees.

As more conservative states enact laws banning abortion after fetal heartbeats have been detected and implement prohibitions on surgical abortion procedures, the court is under increased pressure to consider the hot-button question of when life begins.

“We will just see more and more. At some point, they are going to have to step in,” said Lois Shepherd, a law professor at the University of Virginia.

The case granted review Friday wasn’t a shock to legal scholars, who expected the court to take a look at a Louisiana law requiring doctors performing abortions to have admitting privileges at a hospital no farther than 30 miles from the women’s clinic.

The high court, in a 5-4 move, halted the law from taking effect this year. Chief Justice John G. Roberts Jr. sided with the four Democrat-appointed justices on the court in that move.

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Abortion providers have challenged the legislation, saying it resembles a Texas law that the high court struck down in a 5-4 ruling three years ago. That time, it was Justice Anthony M. Kennedy, who has since retired, siding with the more liberal wing.

Rachel Rebouche, a professor at Temple Law School, said it’s impossible to read into Chief Justice Roberts’ move pausing the state law because he voted in support of the Texas restriction in 2016.

“It could be that this is an opportunity that Justice Roberts would welcome to rethink the decision … or at least to narrow it,” Ms. Rebouche said.

Other cases on the justices’ list for consideration this month don’t conflict squarely with precedent, as the Louisiana challenge does.

One battle seeking their review involves a challenge brought by Indiana after the 7th U.S. Circuit Court of Appeals ruled against its law requiring an ultrasound at least 18 hours before an abortion. Pro-choice advocates said the requirement places unnecessary hurdles in front of women’s access to terminate pregnancies.

But Indiana argued in its appeal to the Supreme Court that the law combines two legal regulations: an ultrasound and an informed consent waiting period.

“Courts have had a history of upholding mandatory counseling, informed consent laws,” said Mary Ziegler, a professor at Florida State University College of Law.

Meanwhile, bubble zones around abortion clinics have long been a subject of debate. Pro-choice advocates want to shield patients from harassment from pro-life demonstrators, and courts have attempted to square privacy rights with the free speech liberties of the protesters.

One appeal on the matter from Illinois is looming before the justices.

It was brought by a pro-life group challenging a Chicago ordinance that makes it illegal to approach someone within 8 feet inside a 50-foot radius of an abortion facility to hand out a leaflet or provide counseling.

In 2000, the high court ruled that an 8-foot radius around patients was legal.

“This is kind of a brewing controversy, but this one seems to be less likely for the Supreme Court to take it up,” Ms. Shepherd said.

Ms. Rebouche agreed. Of the three challenges, she said, that is the one she thought would not be granted review.

“I’m not sure how much will there is to revisit that issue in this term,” she said.

The court watchers said petitions that more directly challenge the 1973 Roe v. Wade decision will be coming before the justices.

“This is a marathon, not a sprint, so even if the court ends up declining these petitions or kicks them down the road, there will be plenty of other opportunities for the court to get back into the abortion business,” Ms. Ziegler said.

Some of those legal battles deal with red states enacting laws banning abortions based on disability, sex and ethnicity. Other laws relate to certain types of surgical procedures.

Several states have enacted heartbeat laws banning abortions after six to eight weeks, once a fetal heartbeat is detected.

“There will probably be more abortion petitions coming to the court soon,” Ms. Ziegler said.

Meanwhile, Adam Feldman, founder of the Empirical SCOTUS blog, said he wouldn’t be surprised if the court tries to avoid squarely addressing Roe v. Wade in the short term and allow the abortion issue to percolate in the states.

“It looks very political if the justices start overturning abortion laws,” Mr. Feldman said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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