When Roe is no more

Friday, January 04, 2019 - Updated: 3:36 pm

By Greg Schleppenbach

The replacement of Justice Anthony Kennedy by Justice Brett Kavanaugh on the U.S. Supreme Court has inspired great hope among pro-life Americans that Roe v. Wade’s days could be numbered.

Ending the destructive legacy of Roe is one of the principal goals of the pro-life movement, but contrary to a common misperception, abortion would not be outlawed throughout our nation when Roe is overturned. So, what would the legal landscape look like when Roe is no more?

Unfortunately, in a post-Roe nation only 11 states, comprising about 20 percent of the U.S. population, would immediately ban abortion. This is because after Roe, only seven states retained their abortion bans “on the books” (but unenforceable under Roe), and four states that had repealed their pre-Roe statutes subsequently enacted so-called “trigger statutes,” saying that abortion is prohibited immediately upon the repeal of Roe.

The other 39 states, comprising about 80 percent of the population, would allow abortion post-Roe unless bans were enacted. In addition, 10 states face a higher hurdle to overcome in banning abortion post-Roe because their state supreme courts recognize a “right” to abortion in their state constitutions.

So, what are the prospects of overturning Roe in the next few years? It depends upon which pro-life legal expert one asks. Some think that the court is more likely to attack Roe incrementally, and others think it could overturn Roe all at once.

There are some cases in the judicial “pipeline” now that could be taken up by the court within the next year or two. One case involves an Indiana law that prohibits abortions based on the unborn child’s race, sex or disability. The 7th Circuit Court struck the ban down as unconstitutional and the state of Indiana has asked the Supreme Court to review that decision.

Laws banning second-trimester “dismemberment” abortions have been enacted in nine states. Two of the laws are in effect and the other seven have been enjoined pending outcomes of litigation. Two of the enjoined laws are presently before U.S. appellate courts in the 5th and 8th Circuits.

In addition, laws requiring abortionists to have admitting privileges in a nearby hospital could also soon work their way to the Supreme Court. Such laws were enacted in Missouri and Louisiana and were upheld by U.S. appellate courts in the 8th and 5th Circuits, respectively.

It’s important to know that the Supreme Court can use any abortion law (even if it doesn’t strike at the heart of Roe) to revisit and overrule Roe, but it takes five willing justices to do so. Please pray and fast that at least five of the justices currently on the court would be so willing to revisit and overturn Roe.

Schleppenbach is associate director of the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. For information on how you can join in the bishops’ pro-life activities, visit www.usccb.org/prolife.

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