U.S. Supreme Court Justice Clarence Thomas recently warned the court that its members must start deciding questions about abortion.
What restrictions are constitutional? What should be banned? What is allowed? And how can abortion law reflect the current science, with 95 percent of biologists in a recent study concluding life begins at conception?
The issue has become a flashpoint this year, with New York adopting a law effectively allowing abortion until birth and Virginia Gov. Ralph Northam condoning infanticide.
Thomas warned that concerns about the abortion industry’s “eugenic goals” are not “hypothetical.”
His comment came after the court overturned a law that ensured deceased unborn infants are provided a “proper burial.”
“This law and other laws like it promote a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” Thomas wrote.
Now the Charlotte Lozier Institute, the research arm of the Susan B. Anthony List, has released a report of abortion cases poised to land at the Supreme Court.
CLI Associate Scholar Mary E. Harned noted the cases include taxpayer funding of abortion, restrictions on abortion procedures, health and safety laws, and gestational limits.
She noted the high court’s recent decision not to review an 11th Circuit decision banning dismemberment abortion in Alabama and the 7th Circuit’s decision to halt a ban on “discriminatory abortions in Indiana.”
She cited Thomas’ statement that “this court is dutybound to address its scope” and the “Constitution itself is silent on abortion.”
He charged that since the Supreme Court created a right to abortion, the justices have an obligation to resolve issues.
“None of these decisions is supported by the text of the Constitution. … We cannot continue blinking the reality of what this court has wrought,” he said.
The CLI report said there are more than a dozen cases in federal courts that could be appealed to the Supreme Court.
One is in the 4th Circuit where South Carolina is appealing a trial court’s rejection of a decision to end state Medicaid program support for abortionists.
“In recent years, states have enacted laws or taken administrative actions that disqualified abortion providers from participation in their Medicaid programs. When challenging these state laws, abortion providers have raised two interdependent claims in litigation: (1) that Medicaid recipients have a private right of action to challenge a state’s disqualification of a Medicaid provider in court; and (2) that the laws violate federal law, specifically the Medicaid statute’s ‘free choice of provider’ provision,” CLI reported.
The circuits are split on the Medicaid issue, and as recently as late last year, the Supreme Court refused to settle the question.
In March, the 6th Circuit reversed a lower court’s decision halting an Ohio law that stops the state Health Department from using finds from federal health programs to contract with abortionists.
The courts also will be faced soon with the question of whether President Trump can order Title X federal funds to go to organizations that do not provide abortion. So far, the courts have said yes, and that likely means Planned Parenthood will lose as much as $60 million over the year.
Many of the cases center on limits on abortion procedures, such as Alabama’s ban on dismembering unborn infants, a procedure the courts now are allowing.
Twelve states have such limits, and several circuits are considering that question.
“If a circuit split develops – one or more circuits uphold a ban while others do not – the Supreme Court will be more likely to accept a petition for review,” CLI reported.
In fact, “Mississippi, North Dakota, and West Virginia dismemberment laws are in effect and have not been challenged,” the report said.
“At least 15 states have enacted bans on the performance of abortion based on the sex of the unborn child, the child’’ race, and/or the presence of a genetic anomaly; laws in five of these states are presently enjoined,” the report continued.
In May, the Supreme Court declined to review an Indiana law that prohibited sex, race and disability-selective abortions.
In the 5th Circuit, a panel affirmed a Louisiana law that requires an abortion provider to have admitting privileges at a hospital within 30 miles of his or her practice.
It already is being prepared for submission to the Supreme Court.
Clinic licensing laws are the issue in Missouri, where Planned Parenthood obtained a judge’s order to keep open a clinic that has failed to meet ordinary health care facility licensing requirements.
The 7th Circuit also upheld an injunction against an Indiana law requiring an 18-hour reflection period. And the 6th Circuit denied a petition for an full-court rehearing of their decision to uphold a Kentucky law requiring abortion providers to perform an ultrasound prior to an abortion, display and describe the ultrasound images, and make audible the fetal heartbeat.
Can a law require parental involvement for juveniles seeking an abortion? The 11th Circuit is looking into the issue.
“The state of Mississippi is appealing to the Fifth Circuit two trial court decisions that enjoined gestational limits on abortion: one would prohibit abortions at or after 15-weeks gestation, the other after a heartbeat can be detected (six-weeks gestation),” CLI’s report said.
“The number and variety of abortion-related cases pending before federal appellate courts will continue to grow. Abortion-rights advocates have filed lawsuits in at least five states that challenge multiple state regulations of abortion, arguing that the regulations’ ‘cumulative effect’ imposes an undue burden on abortion access in the state,” the report said.
“It will become increasingly difficult for the Court to avoid addressing the growing number of cases challenging many aspects of abortion regulation.”