Hi, and welcome back to Legal Geek. This week, we explain the long-term strategy likely behind all the new abortion restriction laws being passed in certain state legislatures in the U.S., and how it will potentially play out in the future. A heavy subject, but we will try to keep it easy to understand.
The end of the Supreme Court 2019 term is coming up, and as usual, we expect a couple major decisions to be held until the end sometime in June. But nothing on this year's docket compares to the potential firestorm brewing over abortion rights and the seminal case on point, Roe v. Wade.
As you likely have seen in the news recently, several state legislatures have either passed or are considering laws that limit when a woman can have an abortion. These range from restrictions on the time period from conception in which an abortion can occur to denials of health insurance coverage for certain types of activities like abortions. And while some of these laws continue to include exceptions for cases like rape and health of the mother, some do not, which flies in the face of several major court decisions that followed up on Roe v. Wade.
So in short, many of these laws are clearly applying an undue burden on women seeking an abortion, contrary to the current case law from Roe and the 1992 Planned Parenthood v. Casey Supreme Court decision. That means federal courts reviewing these laws should find most, if not all of these state laws unconstitutional as violating the 14th Amendment right recognized in Roe. Indeed, all of these laws have been quickly challenged upon passing and are going to be reviewed in federal courts, holding up the implementation of any of these laws until that review is done.
But you may be asking, what is the point if many of these laws are unconstitutional? What's happening behind the scenes is that the federal courts are having a lot of vacancies filled with conservative judges under the Trump administration, and these judges may be more receptive to interpreting the prior case law to allow some of these abortion restrictions. Indeed, this happened a few years ago over a Texas abortion restriction law that led to a 2016 Supreme Court decision we covered that found that law unconstitutional. As such, the conservatives in state legislatures are putting forth a lot of bold laws to force the courts to review these issues, hoping to cause at least one Circuit Court of Appeals to restrict abortion rights in a different way than the others.
If that occurs, the circuit split of opinion is the most likely path forward to having the Supreme Court grant certiorari to settle the dispute of opinion. And with 5 conservative justices currently on the Supreme Court and no more Justice Kennedy, there's potential that Roe v. Wade could be modified significantly or, in a worst-case scenario for pro-choice advocates, overturned. So beyond making a political statement, that's the point of these state laws and the long-term strategy at play here.
The Bottom Line is: this is a perfect storm of circumstances for a credible challenge to the rights granted under Roe v. Wade and the follow up cases, so it should come as no surprise that now if the time such a challenge is being mounted. The impetus is now on lower federal courts to apply the constitution to these laws, and depending on how that goes, we will see if the Supreme Court has reason to take up an abortion case in the next couple years. If that happens, it will likely be the biggest case at the Court in many years.
POSTNOTE - Just an FYI, the Legal Geek will be appearing at Origins in Columbus in June and at GenCon in Indianapolis in August with educational seminars on IP law for game designers. Please come out and say hello if you'll be at those conventions!
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
No comments:
Post a Comment