Courts are delivering mixed rulings giving both wins and losses to pro-life laws following the Supreme Court’s upending of Roe v. Wade last month, signaling abortion jurisprudence will be unclear for the foreseeable future.
A Louisiana court and a Kentucky court recently blocked those states’ near-total bans on abortion from taking effect while litigation continues.
But the move to allow abortions to be performed in those states is in contrast to a ruling by the 11th U.S. Circuit Court of Appeals, upholding Georgia’s ban on the procedure after six weeks of pregnancy.
Lois Shepherd, a health and law professor at the University of Virginia, said abortion jurisprudence will be “unclear for years” following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overruling women’s national right to abortion — and sending the issue back to state legislatures.
“If the Supreme Court majority thought that Dobbs would put an end to the decades of litigation on abortion, they were completely wrong. They’ve opened up a can of worms,” she said.
Lower federal and state courts are grappling with how to treat both old and new pro-life laws aiming to ban or severely restrict the procedure in conservative states after the high court gave lawmakers the green light to curtail a right to abortion.
The rulings — even in conservative states — have not always been a win for the pro-lifers.
In West Virginia, a judge recently refused to allow the state’s more than a century old law banning abortions from taking effect, reasoning that modern laws have been passed regulating the procedure.
The decision prompted West Virginia Attorney General Patrick Morrisey to appeal that decision last week.
And in Florida, a judge also blocked the state’s ban on abortion after 15 weeks, reasoning that it ran afoul of a provision in the state constitution that protects residents from government intrusion into personal lives.
Ms. Shepherd said state courts will have to evaluate various state laws to ensure they don’t run afoul of the state’s constitution — while there will likely also be federal cases involving whether women have the right to travel to another state for an abortion.
Her prediction comes after states with Republicans in control of the legislature have moved to pass laws severely restricting abortion access following the Supreme Court’s Dobbs ruling, which overruled the 1973 Roe v. Wade decision that gave women a national right to an abortion.
The decision upheld a ban on abortion after 15 weeks in Mississippi and sent the abortion issue back to state legislatures, all while upending decades of abortion jurisprudence.
According to The Associated Press, abortion clinics stopped performing abortions in roughly 12 states — either because of laws banning the procedure or conflicting laws putting the legality of abortion in limbo.
Those states include Alabama, Arizona, Arkansas, Georgia, Missouri, Mississippi, South Dakota, Oklahoma, Wisconsin, Wyoming, Texas and Tennessee.
Penny Nance, CEO and president of Concerned Women for America, acknowledged the pro-life movement’s fight has moved to the states, but she said they are ready for the legal battles.
“Unfortunately, activist judges did not go away with Roe. So yes, we expect some of them will find all kinds of creative ways to circumvent the law and delay the implementation of the will of the more than 70% of Americans who want to place strict restrictions on abortion. The good news is that they no longer have the cover of the United States Supreme Court to hide under and they are going to have to work at convincing others, but they will be exposed in their extremism,” she said.