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February 17, 2019

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Anti-abortion activists still see their best chance in years to chip away at Roe v. Wade

Anti-abortion

Alyssa Schukar / The New York Times

Anti-abortion protesters in Louisville, Ky., Sept. 15, 2018. Despite a temporary setback at the Supreme Court on Feb. 8, 2019, the anti-abortion movement nationwide is pursuing its best chance in years to aggressively curb abortion access, and with a bench it believes remains in its favor.

WASHINGTON — Despite a temporary setback at the Supreme Court on Thursday night, the anti-abortion movement nationwide is pursuing its best chance in years to aggressively curb abortion access, and with a bench it believes remains in its favor.

For years, anti-abortion activists have advanced a long-term and wide-ranging strategy to control state legislatures and governorships, in order to chip away at abortion rights. The Louisiana law, which was blocked by the court, would have limited access to abortion providers, is just one in a succession of measures that have passed in recent years in several states that could soon make their way to the nation’s highest court.

“The more you kick the can down the road, the more you are looking at a better court to make decisions,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group. “There are so many cases making their way to the court that this is not the last word. The law is being remade right now, and the courts are being remade, all at the same time.”

Several challenges to federal abortion law are pending before the Supreme Court and about a dozen are working their way up through federal circuit courts. Anti-abortion lawmakers and activists have targeted more than simply the restriction of abortion or its funding. They have worked to pass laws to control the range of issues that surround abortion, from burial of fetal tissue and custody of frozen embryos, to ultrasound requirements.

“It’s a continuation of a strategy that we’ve had for some time, which is to pass as many pro-life laws as we can at the state level with a strategy of bold incrementalism,” said Ralph Reed, founder of the Faith and Freedom Coalition, a social conservative political group.

“You start looking at where the holes in the Swiss cheese are, and what is allowable and what is not,” Reed said. “You continue to move the ball. We have done that now, let’s be honest, for the better part of the last 30-40 years.”

The social conservative strategy has accelerated since 2010, when Republicans made significant gains in state legislatures. States have enacted more than 400 restrictions on abortion since 2011, according to the Guttmacher Institute, a research group that supports abortion rights.

Conservatives in several key states are vying to have one of their states’ laws be the one to reach the Supreme Court first and upend national precedent.

In Indiana, a law signed in 2016 by Mike Pence, then the governor, aims to ban discrimination against a fetus on things like race, sex, and disability. Though it has passed on the case before, the Supreme Court could take it up as soon as next week, and argue it next term. “We are hoping to challenge Roe from this angle, the angle of discrimination,” said Sue Liebel, state director for the Susan B. Anthony List. “It has never been tried before.”

Even if the first primary challenge does not come from Indiana, the nationwide momentum is “really good news” for the anti-abortion movement, she said.

“It probably will not be one case that will topple Roe all at once,” Liebel said. “It will probably be multiple pieces that will take chunks out of Roe.”

In Ohio, the state legislature is prepared to approve a bill this session that would ban abortion after a fetal heartbeat is detected, which could be as early as six weeks into a pregnancy. Anti-abortion activist groups like Right to Life Ohio championed the bill, while abortion rights advocates have pointed out that many women and girls are not even aware that they may be pregnant that early.

The legislation was initially approved by the legislature last year, but was vetoed by John Kasich, then the governor. But his successor, Mike DeWine, who like Kasich is a Republican, has said that he intends to sign the legislation.

“We were very hesitant on the heartbeat bill because we knew we had a hostile Supreme Court,” Mike Gonidakis, president of Right to Life Ohio, said about the court before the elevation of Justices Brett Kavanaugh and Neil Gorsuch by President Donald Trump. “The time is ripe to have the discussion now because of the current Supreme Court. We now see a pathway forward.”

More than 20 bills restricting abortion have become law in Ohio in the past eight years, including legislation that prohibits abortions after 20 weeks of pregnancy, and banning the most common abortion method used in the second trimester of pregnancy.

The Kentucky Legislature is considering a fetal heartbeat bill similar to legislation in Ohio, Florida, Mississippi, Missouri and South Carolina. Kentucky has in recent years approved several laws curtailing abortion rights that have been ruled unconstitutional, two of which could ultimately be decided by the Supreme Court.

The first requires doctors to perform an ultrasound before an abortion, then to display and describe the images, and finally, to make the fetal heartbeat audible. The second mandates abortion providers to enter into written transfer agreements with a local hospital, as well as arranging transport arrangements with ambulance services. Both are under appeals in the Sixth Circuit.

Some Democratic-controlled statehouses have recently worked to counter the groundswell from the right. New York expanded abortion rights last month for the first time in almost 50 years, permitting some abortions after 24 weeks of pregnancy. A Virginia legislator proposed a bill that would have lifted restrictions on late-term abortions, but the proposal was set aside in committee.

Amid all this activity, abortion-rights activists are alarmed at Thursday’s Louisiana decision because it is the clearest indicator yet of how Kavanaugh might rule on abortion in future cases. In the 5-4 ruling, he wrote the dissent.

“We were called hysterical for claiming that Brett Kavanaugh was hostile to Roe v. Wade in the confirmation hearings,” said Ilyse Hogue, president of the abortion rights organization NARAL. “He has shown his true colors.”

The Louisiana case is far from decided. The Supreme Court is likely to hear arguments on its merits in the next term, which begins in October.

“This is only temporary: with Kavanaugh on the court, abortion access hangs in the balance,” Dr. Leana Wen, president of the Planned Parenthood Federation of America, said in an email. “This fight goes on.”