The anti-abortion movement believes it's one Donald Trump-appointed Supreme Court justice away from a shot at overturning Roe v. Wade, and advocates are teeing up what they hope will be the winning challenge.
From Iowa to South Carolina, lawmakers are proposing some of the most far-reaching abortion restrictions in a generation, hoping their legislation triggers the lawsuit that eventually makes it to the high court.
Mississippi just approved the earliest abortion ban in the country — at 15 weeks of pregnancy — and Kentucky last week banned the procedure used in most abortions after 11 weeks. Legislatures in Ohio and South Carolina are weighing total prohibitions of the procedure, while Iowa is considering a ban as soon as a heartbeat is detected — all bills that if signed into law would violate Roe and prompt lawsuits.
"That could ultimately be a bill that revisits Roe v. Wade," Ohio state Rep. Ron Hood said of his bill to prohibit all abortions. “One flip of a Supreme Court justice, and revisiting Roe v. Wade looks very, very promising.”
But the aggressive strategy is causing a rift in the anti-abortion movement, with some hesitant to test the limits of the landmark 1973 decision before it‘s clear five justices are willing to overturn it. In the last several years, the justices have refused to weigh in on state bans on the procedure before the point of fetal viability — the current legal standard — generally understood as 24 weeks.
Rep. Steve King (R-Iowa), who has authored legislation, H.R. 490 (115), to prohibit abortion nationwide when a heartbeat is detected, often at six weeks, says National Right to Life — the oldest and perhaps most influential anti-abortion group — is blocking his bill in favor of a more incremental strategy.
“They’re standing in the way" of a House floor vote, King told POLITICO. “They are dividing the pro-life movement in this country. I’ve said, ‘Please lead, or get out of the way.’”
National Right to Life President Carol Tobias said the group does not oppose King’s bill. But it is focused on enacting prohibitions of the procedure at 20 weeks, based on the contested idea that that is the point at which a fetus can feel pain.
“We told him we wouldn’t oppose the bill,” she said. “There could be different ways of achieving the same goal.”
Under a precedent set by former Speaker John Boehner, King said that House GOP leaders won't bring an anti-abortion bill to the floor unless it is supported by three groups: National Right to Life, the Susan B. Anthony List and the Family Research Council. The latter two support King's bill.
A spokesperson for Speaker Paul Ryan denied such a rule exists.
The determination to revisit Roe comes amid renewed speculation about the possible retirement of Justice Anthony Kennedy, which would give anti-abortion forces their best opportunity in a generation to weaken or strike down the ruling that made abortion legal. The Ronald Reagan appointee has ruled in favor of abortion rights, most notably by switching his vote during deliberations in Planned Parenthood v. Casey, a 1992 decision that upheld the Roe precedent.
King and like-minded lawmakers want to enact a bill now that could set up a Supreme Court showdown in one to two years, when another Trump-appointed justice might be seated.
"I wrote the heartbeat bill to go before the court after the next appointment at the Supreme Court," King said. "And I've been absolutely clear about that with the pro-life movement."
But National Right to Life and other parts of the anti-abortion movement have moved away from the idea of challenging Roe until the composition of the high court changes, particularly in the wake of its 2016 decision that struck down a Texas law on the grounds it unduly restricted access to the procedure. Trump promised during his campaign he would appoint "pro-life" justices, a vow that won him support from anti-abortion groups.
Some anti-abortion groups fear that if the court takes a case now, with its future composition uncertain, the majority opinion could be written by Justice Ruth Bader Ginsburg, the court’s most fervent advocate of abortion rights.
They‘ve pushed instead for clinic regulations and, most recently, bans on abortion in certain situations, such as when a fetus is diagnosed with Down syndrome. Their main focus has been prohibitions of the procedure at 20 weeks of pregnancy — long after most abortions are done, but about four weeks earlier than Roe allows states to regulate.
The effort has largely been successful. There are 20-week abortion prohibitions in 18 states, according to the Guttmacher Institute, a research organization that supports abortion rights. Two additional states — Arizona and Idaho — tried to enact the bans only to see them knocked down by court challenges.
Abortion-rights supporters argue the incremental approach is more threatening because it rides under the national radar while slowly imposing new hurdles to abortion access, particularly in states with aggressive legislatures.
"Focusing on these blatantly unconstitutional bans on abortion detracts from the slow chipping away that has led to the clinic closures over the years that is less visible to people," said Brigitte Amiri, a senior staff attorney at the ACLU who focuses on abortion rights.
A closely divided Senate may prove to be the most effective barrier to any new anti-abortion legislation or court rulings.
Even if there is an opening on the high court, Trump's appointees would face intense confirmation scrutiny, especially if the next appointment is to replace Kennedy or a Democratic-appointed justice that would clearly tilt the court's ideological balance. Abortion rights would be a central point of what would be an extremely high-profile confirmation process.
And the odds of the Senate passing a new federal abortion restriction is close to zero; a recent effort to prohibit abortion at 20 weeks of pregnancy fell nine votes short of overcoming a filibuster.
The Senate firewall could be part of what's driving the flurry of state activity, said Susan Swayze Liebel, coordinator of the National Pro-Life Women's Caucus for the Susan B. Anthony List.
"States are picking up the mantle," she said. "The disappointment with not getting pro-life legislation through Congress, especially the Senate — I think that's fueling some anger and some activism in the states that are saying, ‘Well, we'll just do this ourselves.’"
While the current justices have turned down recent cases that might reopen the issue of when during a pregnancy states can restrict abortion, they could consider other related cases.
In recent weeks, for instance, they have been asked to take up two cases relating to whether states are allowed to defund Planned Parenthood through Medicaid. Though most lower courts have ruled they cannot do so, one held differently, creating the kind of split that often prompts the Supreme Court to step in.
Planned Parenthood has also asked the court to undo an Arkansas law that requires abortion providers to have admitting privileges at a nearby hospital when administering medication abortion. The law, similar to the Texas law struck down by the Supreme Court, would leave only one abortion provider in the state.