By S.M. | NEW YORK
IN 2016, Donald Trump said Roe v Wade, the 1973 abortion-rights ruling, would “automatically” be overruled by justices he would appoint to the Supreme Court. Three years later, with two of his picks in robes and a surge of challenges to Roe flying to the court, abortion-rights supporters fear Mr Trump’s prediction may be close to coming true. But, so far, every time a reckoning on Roe seems imminent, the Supreme Court has taken a step back. Abortion rights are in trouble, but it seems that the conservative justices on the nation’s highest court (with the notable exception of Clarence Thomas) are content to plod along rather than rush headlong into a decision that could spark a dangerous new flashpoint in the culture wars.
While states like Georgia and Alabama have been passing alarmingly extreme abortion bans that are flatly out-of-line with Roe, the Supreme Court has been considering whether to take Box v Planned Parenthood of Indiana and Kentucky, a case involving a more insidious type of anti-abortion law. Box concerns HEA 1337, which Mike Pence, now the vice-president, signed into law in 2016 when he was governor of Indiana. In a Seventh Circuit Court of Appeals ruling last year, two of the law’s provisions were deemed unconstitutional: a requirement that fetal remains from abortions be buried or cremated; and a bar on abortions motivated solely by the fetus’s race, sex or diagnosed disability such as Down syndrome. The fetal-remains provision lacks a rational basis, the Seventh Circuit held, while the “non-discrimination” rule undermines Roe’s promise, reaffirmed in 1992 in Planned Parenthood v Casey, that states may place no “undue burden” on a woman’s right to end a pregnancy prior to viability, or about 24 weeks’ gestation. To prohibit women with particular motivations from aborting their fetuses is to impose “far greater than a substantial obstacle” on the constitutional right, the Seventh Circuit ruled. These limits are “absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the state”.
