“Why not?” Mallory Quigley, vice president of communications of the anti-abortion group Susan B. Anthony List, told CNN when asked why states might continue to advance restrictions after the court’s announcement it will review the Mississippi case that could gut Roe v. Wade.
“Activists should continue to do their jobs,” Quigley said. “It’s the justices’ job to, you know, to consider legally these bills. It’s the activists’ job to keep having bills, keep repeating an argument and keep fighting.”
Elizabeth Nash, the interim associate director of state issues at abortion-rights research group the Guttmacher Institute, said that the “immediate impact is that it emboldens state legislators to pass more restrictions and bans.”
“Just simply by taking this case, because it’s so counter to the existing rulings on abortion from the Supreme Court, it really does say to state legislators that they can continue to pass these restrictions,” Nash said.
The high court’s decision to consider Mississippi’s 15-week ban comes as the crescendo of GOP-led states continue to enact abortion limits. South Carolina, Oklahoma and Idaho have codified bans on abortion at the onset of a fetal heartbeat, Arkansas and Oklahoma have enacted near-total abortion bans, and Montana banned the procedure at 20 weeks.
None of the bills have gone into effect, either because of lower court actions or later effective dates, but they fit the concerted pattern to pass laws designed to simply attract the Supreme Court’s attention, especially with its strong 6-3 conservative majority.
Conservative lawmakers have bluntly said as much. Arkansas’ Republican Gov. Asa Hutchinson said in March that he signed a near-total abortion ban into law earlier that month because he wanted the Supreme Court to eventually consider the legislation and overturn Roe.
“That was the whole design of the law. It is not constitutional under Supreme Court cases right now,” Hutchinson told CNN’s Dana Bash on “State of the Union.” “I signed it because it is a direct challenge to Roe v. Wade.”
The Mississippi case, Dobbs v. Jackson Women’s Health Organization, has a chance to do what nearly all proponents of state abortion bans in recent years have dreamed to do — directly challenge Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
Katie Glenn, government affairs counsel at Americans United for Life, said that in light of the court taking up the case just as many state legislative cycles are currently wrapping up, states seeking to advance bills could seek to wait for the Supreme Court’s decision — or just act in hopes of it supporting their bills.
“They could say, ‘hey, we feel like there’s a good chance that we’ll have greater authority to make policy in this area, so let’s pass something now and hopefully this summer, when we get a decision in Dobbs, it will say that our law can go into effect.'”
Many states have preparing for this moment. According to Guttmacher, as of Thursday, 22 states currently have laws on the books that could curtail abortion access. Nine states have kept abortion restrictions dating back from before Roe, which currently renders them unenforceable, and 10 states have enacted so-called “trigger bans,” laws banning all or nearly all abortions that would go into effect should Roe be overturned.
Nash described a trend of “priming the pump,” adding that “the idea is to have restrictions and bans, you know, on the books that could go into effect should abortion rights be weakened. So they’re already, you know, sort of setting the stage.”
Abortion rights supporters also recognize that the first case getting preliminary approval from the court for consideration could mark the first domino to fall in protecting Roe.
“The optics feel difficult because this ban flies in the face of nearly 50 years of precedent,” said Elisabeth Smith, chief counsel for state policy & advocacy at the Center for Reproductive Rights, which brought the challenge against the Mississippi law. “We won in the trial court. We won in the 5th Circuit [Court of Appeals], which is an appellate circuit very hostile to abortion rights as they have demonstrated. And so in some ways, granting cert in this case, says to other states passing unconstitutional abortion bans and restrictions: ‘continue.'”
Will Democratic-led states go the other way?
The court taking up the Mississippi case could also push Democratic-led states to codify abortion protections, Nash said.
Illinois, Maine, Nevada, New York, Rhode Island and Vermont led the charge in 2019 to enshrine abortion rights at the state level, and Democratic Virginia Gov. Ralph Northam signed bills in 2020 rolling back multiple abortion restrictions in the state.
“We saw a number of states adopt abortion protections in 2019, and we haven’t seen much of those protections over the past couple of years,” Nash said. “But this is the kind of move that would galvanize those legislators to shore up abortion rights in their own states.”
“I think you’ll probably see it on the other side as well. I mean, I don’t know what more they can do,” said Kristan Hawkins, the president of Students for Life, an anti-abortion-rights nonprofit that focuses on college campuses, referring to abortion protections codified in California, New York and Illinois. “But I’m sure you’ll see lawmakers and other states try to rise up and say, ‘oh my goodness, this is, you know, if they strike down abortions in the 15th week, second and third trimester abortions, you know, we’re going to move forward and try to do something in our state.'”
Such post-Roe state level preparations on both sides could prove warranted. Mary Ziegler, a law professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present,” pointed to the “assumption that the Supreme Court wouldn’t have taken this case unless they’re planning on at least seriously considering upholding the Mississippi law, which would require them either, either to overturn Roe v. Wade or get rid of fetal viability is the dividing line at which abortion can be banned.”
“To some degree, state legislators are anticipating what the court is going to be allowing them to do down the road,” she said.
No guarantee what SCOTUS will say
The court providing an opportunity to one case is by no means a guarantee of success for anti-abortion advocates. The last time an abortion restriction was before the court, Chief Justice John Roberts voted to strike it in a move that angered many abortion opponents. So having more bills ready in the pipeline is a key part of seeking to overturn abortion access through the courts, even if there are in theory five justices to Roberts’ right who want to go further than he would otherwise.
Glenn pointed to the unpredictability of prior abortion cases, saying that “It’s unclear what the Supreme Court will do with this case: they can rule very broadly, they can rule very narrowly. They could rule on this law, but give unclear guidance on other laws — that’s what happened in (prior Supreme Court abortion cases Whole Women’s Health v.) Hellerstedt and in Jude Medical, where they said, you know, this law is no good, but other laws could be.”
In 2016’s Whole Woman’s Health v. Hellerstedt, former Justice Anthony Kennedy joined a 5-3 majority that threw out a Texas abortion access law, marking a victory to supporters of abortion rights who argued that the law’s provisions — requiring that doctors had to have to have local admitting privileges at nearby hospitals, and that the clinics had have to upgrade their facilities to hospital-like standards — would have shuttered all but a handful of clinics in the state.
In Medical v. Russo last June, Roberts sided with the liberal justices on the Supreme Court on Monday to block a similar controversial Louisiana abortion law that critics said would have closed nearly every clinic in the state — but with Roberts leaving open the possibility that other states might be able to pursue similar restrictions.
“And then the states have spent the last couple of years trying to figure out what that meant,” Glenn said. “So, you know, ultimately what animates these lawmakers is caring about the life of unborn children and the health and safety of women in their states. And so nobody is going to put their pro-life activism on pause just because the court has taken a case.”
To Hawkins, it’s an example of “don’t put all your eggs in one basket.”
“I don’t think there’s many people in the pro-life movement who think that, you know, one law that was passed in one state is going to be the undoing of Roe vs. Wade,” she said. “Especially with the makeup of this court where, you know, conservative judges are known to be conservative in their actions and not advocate for broad sweeping decisions.”