Abortion rights supporters hold signs of U.S. Supreme Court Justices as they participate in a rally and march on May 14, 2022 in New York City.
Photo by Stephanie Keith/Getty Images
The Supreme Court ended the constitutional right to abortion, but the abortion wars are not over.
The June 24 ruling overturning Roe v. Wade sparked a frenzy of complex legal questions.
Those questions could end up before the Supreme Court, court watchers told Insider.
The Supreme Court ended the constitutional right to abortion, but the abortion wars are far from over – and key battles could end up before the justices.
Roe v. Wade, which established a federal right to abortion nearly 50 years ago, was an “abuse of judicial authority” that “sparked a national controversy,” Justice Samuel Alito, the author of the monumental June 24 ruling, wrote in the majority opinion.
The conservative justices declared that states – not the nation’s highest court – should deal with abortion on their terms. As Alito put it: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Yet the Supreme Court will likely have to confront new abortion cases around rape or incest exceptions, travel, data privacy, and other major issues as the decision has opened the floodgates to a wave of complex legal questions, court watchers told Insider.
“This is ridiculous. It’s laughable. Why? Because it’s not going to keep the court out of the abortion controversy,” Radhika Rao, a professor at the University of California Hastings College of Law, told Insider. “This decision is further fanning the flames of the polarization and political division in this country instead of putting the issue to rest.”
Among the many questions spurred by the ruling include: Is there any right to abortion in cases of rape or incest? What if the pregnant person’s health is at risk? Can a state restrict you from traveling to another state to get an abortion where it’s legal? If someone does travel to another state for an abortion, can they face prosecution upon return to their home state? Can states block abortion medication delivered via mail? How far can states go to criminalize clinicians who provide abortion services?
“There are major, important questions yet to be addressed even though the court has presented this as: ‘OK. Let’s get rid of abortion from the judicial docket. Let’s put it back to the states,” Barry McDonald, a professor at Pepperdine University Caruso School of Law, said. “The court still has a lot of work to do in this area.”
Anti-abortion demonstrators are confronted in front of the Supreme Court building following the announcement to the Dobbs v Jackson Women’s Health Organization ruling on June 25, 2022.
Brandon Bell/Getty Images
Current legal battles could wind up at the Supreme Court
Along with Alito, conservative justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett dealt the fatal blow to Roe last month.
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the majority declared.
The decision leaves a messy patchwork of state laws in its wake. Abortion up until fetal viability — about 23 to 24 weeks — or later in pregnancy is still legal in about 20 states. But for almost half of states, mainly Republican-led, abortion is expected to be significantly restricted. At least nine states have already imposed a total or near-total ban on the procedure and five states have prohibited abortion after a certain limit, such as six weeks or 15 weeks of pregnancy, with more regulations to come.
Court fights are playing out at the state-level that experts believe could last for years. Abortion-rights groups have filed lawsuits against the new bans, and judges in Louisiana, Kentucky, Utah, and Arizona have temporarily blocked enforcement in those states. The challenges concern a spate of laws, with advocates raising several theories for striking them down: the abortion restrictions are vague, outdated, and violate state constitutions.
These issues raise constitutional questions, including privacy concerns, that are likely to seep into federal courts and potentially, the Supreme Court, Rao told Insider, adding that some questions include: Can the government track someone seeking abortion services? Can they access someone’s cell phone data?
Toward the end of the Supreme Court opinion, the conservative majority briefly touched on constitutional challenges that may arise from new abortion laws, stating that courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”
Courts must apply a “rational-based review” standard to such cases, which means if the state has “legitimate interests,” for example to protect “the life of the unborn,” then the challenges must fail, Alito wrote.
“It’s compelling states to apply this lowest level of scrutiny,” Rao said. “However, that does not answer these other questions that I just raised.”
A general view of an exam room inside the Hope Clinic For Women in Granite City, Illinois, on June 27, 2022. – Abortion is now banned in Missouri.
ANGELA WEISS/AFP via Getty Images
Many constitutional questions on abortion remain
The Supreme Court’s ruling also failed to address any specifics, even with the law in dispute. The major case concerned a Mississippi statute that sought to ban abortion after 15 weeks of pregnancy, with exceptions only in cases of fetal abnormality or if the mother’s life is at risk. The court upheld the law, without offering any further comment on it.
“Are they really saying that a woman has no constitutional rights against being forced to bear a baby that’s the product of rape or incest?” McDonald asked. “To me, that’s a big elephant standing in the room after this decision.”
In nine states where abortion has been restricted, there are no exceptions for cases of rape or incest, according to data compiled by the Guttmacher Institute, a leading reproductive health research group that supports abortion rights.
The court similarly did not weigh in on residents traveling out-of-state to get an abortion where it’s still legal, an issue that’s risen to the forefront of the national debate.
Kavanaugh attempted to nip it in the bud, writing in a concurring opinion, “may a State bar a resident of that State from traveling to another State to obtain an abortion?”
“In my view, the answer is no based on the constitutional right to interstate travel,” he wrote.
But Kavanaugh did not write for the majority. And some states, like Missouri and South Carolina, have started considering measures to criminalize anyone who helps a patient travel to another state for an abortion. That could mean targeting businesses or organizations, like Planned Parenthood, for providing travel funds to get an abortion.
These questions have emerged in the high-profile case of a 10-year-old Ohio girl, who recently had to travel to Indiana to get an abortion after she was raped by a 27-year-old man. Ohio banned abortion after six weeks of pregnancy with no exceptions for rape or incest – a law that took effect after the Supreme Court overturned Roe.
New disputes may soon make their way to the Supreme Court, though it’s unclear how the justices will decide.
“I think we’re gonna have these cases come before the court: the travel issue, the rape, incest exception, the life of the mother exception. I don’t know what the court would do,” Sherry Colb, a professor at Cornell Law School, said. “It makes a whole lot of noise about how it doesn’t care what the public thinks, but I don’t think that’s true. I think nobody is completely immune to people thinking they’re horrible.”