Analysis-Trump’s U.S. Supreme Court appointees poised to deliver on abortion

By Andrew Chung and Lawrence Hurley

WASHINGTON (Reuters) – The month before being elected president in 2016, Donald Trump promised during a debate with his opponent Hillary Clinton to name justices to the U.S. Supreme Court who would overturn the landmark Roe v. Wade ruling that legalized abortion nationwide.

His three appointees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – may be on the verge of turning that pledge into a reality, based on their remarks during arguments over the legality of a restrictive Mississippi abortion law.

“Trump is very effective, as we saw at the Supreme Court,” Mike Davis, who leads the Article III Project legal group that backed the Republican former president’s judicial appointees during his time in office, said, referring to Wednesday’s arguments. “He delivered, as he promised he would.”

During four years in office, Trump managed to appoint one third of the current members of the highest U.S. judicial body and half of its conservative bloc, with all three of his picks coming from a list compiled by conservative legal activists.

Wednesday’s arguments marked the first time that the current court has heard a case in which overturning Roe was explicitly on the table. Trump’s appointees – Gorsuch in 2017, Kavanaugh in 2018 and Barrett in 2020 – may prove instrumental in how far the court may go in rolling back abortion rights. All six conservative justices indicated a willingness to dramatically curtail abortion rights and perhaps outright overturn Roe.

Then-candidate Trump said in the October 2016 debate with Democrat Clinton of overturning Roe: “Well, if we put another two or perhaps three justices on, that … will happen automatically in my opinion because I am putting pro-life justices on the court.”

It was a pitch that appealed to conservative Christian voters who helped put him into office and remained among his most ardent backers. Trump has not yet announced whether he will run again in 2024.

“I think it’s more possible than any time that we’ve seen at least in my lifetime,” Jeanne Mancini, president of the March for Life group that holds annual anti-abortion rallies in Washington, said of overturning Roe.

While saying politics is just one part of the effort to stop abortion, Mancini added: “I’m very grateful to President Trump for the decisions he made.”

Barrett’s appointment in particular buoyed religious conservatives and anti-abortion activists, cementing the court’s 6-3 conservative super-majority. Barrett, a devout Catholic and former legal scholar, previously had signaled support for overturning Roe in the past.

RESPECTING PRECEDENT

Gorsuch, Kavanaugh and Barrett voiced doubts during the argument either about Roe’s legal underpinnings or the need to adhere to it as a decades-old major decision, a legal principle called stare decisis. Supporters of the principle have said it protects the court’s credibility and legitimacy by avoiding politicization and keeping the law steady and evenhanded.

Gorsuch highlighted what abortion opponents consider a weakness in the argument to keep Roe: it has already been changed and limited by a 1992 ruling called Planned Parenthood of Southeastern Pennsylvania v. Casey that reaffirmed the right to abortion, and the test for what restrictions states may enact has “evolved over time, too.”

Kavanaugh emphasized American divisions over abortion, offering a view often expressed by abortion opponents that the question should be one for the “people” – state legislatures or the U.S. Congress – to decide.

“The Constitution’s neither pro-life nor pro-choice on the question of abortion,” Kavanaugh said.

Barrett during her Senate confirmation hearings indicated Roe was not a “super-precedent” that should never be overturned. During Wednesday’s arguments, Barrett raised the idea that certain precedents should be harder to overrule than others.

She also asked whether the recent adoption in some states of “safe haven” laws, which let women hand over unwanted babies to healthcare facilities without penalty, undermines certain justifications for abortions because women are not forced into motherhood merely by giving birth.

The last time the Supreme Court was this close to overturning Roe was in the 1992 Casey case, when its moderates banded together and reaffirmed abortion rights.

The outcome could be different this time in part thanks to a decades-long effort by conservative legal activists to reshape the court and remarkably effective political maneuvering by a key Republican senator, Mitch McConnell.

Trump entered office with a Supreme Court vacancy to fill because McConnell, then Senate majority leader, refused to consider Democratic President Barack Obama’s 2016 nominee. Then last year McConnell moved to have the Senate speedily confirm Barrett a week before the presidential election to replace the late liberal Justice Ruth Bader Ginsburg, an abortion rights champion.

Roe v. Wade recognized that the right to personal privacy under the U.S. Constitution protects a woman’s ability to terminate her pregnancy. Mississippi’s Republican-backed 2018 law, blocked by lower courts, bans abortion after 15 weeks of pregnancy. A ruling in the case is due by the end of next June.

(Reporting by Andrew Chung and Lawrence Hurley; Editing by Will Dunham)

Chile lawmakers knock down bill to ease abortion rules

By Fabian Cambero

SANTIAGO (Reuters) – Chile’s lower Chamber of Deputies rejected a bill on Tuesday that sought to expand legal access for women to get abortions, legislation that was opposed by the South American country’s center-right government.

At the end of September, legislators in the chamber voted in favor of studying and debating the bill, that proposed legalizing termination of pregnancy up to 14 weeks.

Chile in 2017 legalized abortion for women under conditions where their life was in danger, a fetus was unviable or when a pregnancy had resulted from rape.

“The Chamber rejected a motion that modifies the Penal Code, to decriminalize consensual abortion by women within the first 14 weeks of pregnancy. The project is shelved,” the lower chamber posted on Twitter after the vote.

Deputy Maya Fernández, who had promoted the bill, criticized the rejection and said it would push women into more risky illegal abortions.

“Many still prefer that there be clandestine abortions where women are subjected to inhumane conditions,” she wrote on Twitter.

A number of countries around conservative Latin America have taken steps to decriminalize abortion, including Argentina last year and Mexico, where the Supreme Court unanimously ruled in September that penalizing abortion is unconstitutional.

(Reporting by Fabián Andrés Cambero; Editing by Adam Jourdan and David Gregorio)

In U.S. Supreme Court case, the past could be the future on abortion

By Lawrence Hurley

OXFORD, Miss. (Reuters) – Just months before she was set to start law school in the summer of 1973, Barbara Phillips was shocked to learn she was pregnant.

Then 24, she wanted an abortion. The U.S. Supreme Court had legalized abortion nationwide months earlier with its landmark Roe v. Wade ruling recognizing a woman’s constitutional right to terminate a pregnancy. But abortions were not legally available at the time in Mississippi, where she lived in the small town of Port Gibson.

Phillips, a Black woman enmeshed in the civil rights movement, could feel her dream of becoming a lawyer slipping away.

“It was devastating. I was desperate,” Phillips said, sitting on the patio of her cozy one-story house in Oxford, a college town about 160 miles (260 km) north of Jackson, Mississippi’s capital.

At the time of the Roe ruling, 46 of the 50 U.S. states had some sort of criminal prohibitions on abortion. Access often was limited to wealthy and well-connected women, who tended to be white.

With a feminist group’s help, Phillips located a doctor in New York willing to provide an abortion. New York before Roe was the only state that let out-of-state women obtain abortions. She flew there for the procedure.

Now 72, Phillips does not regret her abortion. She went on to attend Northwestern law school in Chicago and realize her goal of becoming a civil rights lawyer, with a long career. Years later, she had a son when she felt the time was right.

“I was determined to decide for myself what I wanted to do with my life and my body,” Phillips said.

U.S. abortion rights are under attack unlike any time since the Roe ruling, with Republican-backed restrictions being passed in numerous states. The Supreme Court on Dec. 1 is set to hear arguments in a case in which Mississippi is seeking to revive its law, blocked by lower courts, banning abortion after 15 weeks of pregnancy. Mississippi has raised the stakes by explicitly asking the court, which has a 6-3 conservative majority, to overturn Roe v. Wade.

Such a ruling could turn back the clock in Mississippi, which currently has just one abortion clinic, and other states to the kind of environment on abortion access that Phillips experienced nearly a half century ago.

Large swathes of America could return to an era in which women who want to end a pregnancy face the choice of undergoing a potentially dangerous illegal abortion, traveling long distances to a state where the procedure remains legal and available or buying abortion pills online.

Mississippi’s abortion law is not the only one being tested at the Supreme Court. The justices on Nov. 1 heard arguments in challenges to a Texas law banning abortion at about six weeks of pregnancy, but have not yet ruled.

TRIGGER LAWS

Mississippi is one of a dozen states with so-called trigger laws that would immediately ban abortion in all or most cases if Roe is overturned, according to the Guttmacher Institute, a research group that supports abortion rights.

Many are in the South, so a Mississippi woman would be unable to obtain an abortion in neighboring Louisiana, Arkansas, Tennessee or Alabama. The nearest states where abortion would remain legal, at least in the short term, would be Illinois and Florida.

The average distance a Mississippi woman would need to drive to reach a clinic would increase from 78 miles to 380 miles (125 to 610 km) each way, according to Guttmacher.

While some abortion rights advocates fear a return to grisly illegal back-alley abortions, there has been an important development since the pre-Roe era: abortion pills. Mississippi is among 19 states imposing restrictions on medication-induced abortions.

Mississippi officials are cagey on what a post-Roe world might look like. Republican Attorney General Lynn Fitch, who asked the court to overturn Roe, declined an interview request, as did Republican Governor Tate Reeves.

Mississippi Commissioner of Agriculture and Commerce Andy Gipson, who as a Republican state legislator helped shepherd the 2018 passage of the 15-week ban, called Roe v. Wade “antiquated, old law based on antiquated and old science.”

Gipson in an interview declined to answer questions about what Mississippi – or the southeastern United States – would be like without abortion rights, focusing on the specifics of the 15-week ban.

“It’s a false narrative to paint this as a picture of an outright ban throughout the southeast,” Gipson said, noting that the Supreme Court does not have to formally overturn Roe to uphold Mississippi’s law.

In court papers, Fitch said scientific advances, including contested claims that a fetus can detect pain early in a pregnancy, emphasize how Roe and a subsequent 1992 decision that reaffirmed abortion rights are “decades out of date.”

Abortion rights advocates have said any ruling upholding Mississippi’s law would effectively gut Roe, giving states unfettered power to limit or ban the procedure.

Phillips worries about a revival of dangerous, unregulated abortions that imperil women’s lives.

“I’m afraid that many more women and girls will be in back alleys,” Phillips said. “I’m worried we are going to find them in country roads, dead.”

(Reporting by Lawrence Hurley; Editing by Will Dunham and Scott Malone)

With prayers and signs, abortion demonstrators converge on U.S. Supreme Court

By Jan Wolfe

WASHINGTON (Reuters) – Shortly before the U.S. Supreme Court began heard arguments in a major abortion dispute out of Texas, a group of demonstrators who oppose abortion joined together outside the stately white marble neoclassical building to pray for the nine justices, listing each one by name.

Hundreds of people in support and opposition to a restrictive Texas abortion law gathered on Monday outside the courthouse on a mild autumn day in the U.S. capital. The justices heard arguments in challenges by President Joe Biden’s administration and abortion providers to the measure, which imposes a near-total abortion ban – prohibiting it after six weeks of pregnancy – and empowers private citizens enforce it.

Abortion opponents held signs saying, “Let their hearts beat,” and played Christian music. Abortion rights supporters held signs saying “Bans off our bodies” and “Abortion is essential.”

Some of the law’s supporters cast the debate in religious terms.

The Reverend Patrick Mahoney, chief strategy officer for the anti-abortion group Stanton Public Policy Center, said, “Our strength is local. You can go to every community in the country right now and find grandmas in church basements knitting baby booties or doing bake sales. There’s this collective energy bubbling in our movement right now.”

Regarding the law’s private-enforcement mechanism, Mahoney said, “Is that the way I would have gone? Probably not. But it’s saving innocent lives. Overall I think it’s innovative and creative.”

The law puts enforcement in the hands of private citizens, empowering them to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. Individual citizens can be awarded a minimum of $10,000 in successful lawsuits.

Julia Deluce, a coordinator with the group Students for Life, said she was advocating for the rights of “pre-born children,” adding, “They are human. They are part of our species. And they deserve our protection.”

Abortion rights demonstrators voiced alarm over the Texas law, which bans abortion at a point in time when many women do not yet realize they are pregnant. Abortion was legalized nationwide in the Supreme Court’s Roe. v. Wade decision. A series of restrictive Republican-backed abortion laws have been passed by states in recent years.

Washington resident Martha Dickey said she has been advocating for abortion rights since the 1970s.

“I found out what happened in Texas and I was really upset,” Dickey said. “… It stops the chance for a woman to be free to decide what happens to her own body.”

Amy Hagstrom Miller, founder of the Whole Women’s Health Clinic abortion provider that challenged the Texas law, said, “A ban like this doesn’t change the fact that people need abortions. It just changes the kind of abortions they can have.” She said she hopes the justices understand the impact of their decisions “on real people’s lives.”

(Writing by Jan Wolfe; Editing by Will Dunham)

U.S. Supreme Court leans toward allowing challenge to Texas abortion law

By Andrew Chung and Lawrence Hurley

WASHINGTON (Reuters) – Conservative U.S. Supreme Court justices on Monday appeared to lean toward allowing a challenge by abortion providers to a Texas law that imposes a near-total ban on the procedure and lets private citizens enforce it, but seemed skeptical about whether President Joe Biden’s administration can do so.

The court, with a 6-3 conservative majority, heard three hours of oral arguments in separate challenges by abortion providers and the Democratic president’s administration to the Republican-backed measure considered the toughest abortion law in the United States.

Some justices signaled that existing Supreme Court precedent could accommodate the lawsuit brought by abortion providers despite the law’s novel design that makes it difficult for federal courts to block its enforcement. Instead of having state officials enforce a ban on abortions after about six weeks of pregnancy – a time when many women do not realize they are pregnant – the law lets individual citizens enforce it through lawsuits against providers.

U.S. abortion rights are hanging in the balance as the justices review the Texas law before hearing arguments on Dec. 1 over the legality of a Mississippi measure prohibiting the procedure after 15 weeks of pregnancy.

As the Texas challenges are being heard on an expedited basis, a decision potentially blocking the law could come quickly. In the challenge by abortion providers, the court on Sept. 1 declined to halt the law, with five of its six conservative justices in the majority. There were signs on Monday that some conservative justices were reconsidering their positions.

However, in the Biden administration’s challenge, conservative justices seemed skeptical about federal power to sue Texas over the law.

At issue is whether federal courts can hear lawsuits aimed at striking down the Texas law and whether the U.S. government even can sue to try to block it. If the justices keep federal courts out of the process by virtue of the law’s unique design, it could be replicated in other states and curtail abortion access in other parts of the country.

Justice Amy Coney Barrett asked clinic lawyer Marc Hearron about whether under the law’s structure the constitutional claims on the right to abortion could ever be “fully aired.” Under the Texas law, abortion providers can bring up that constitutional issue as a defense only after they have been sued.

Justice Brett Kavanaugh expressed interest in an outcome raised by liberal Justice Elena Kagan in which state court clerks would be barred from allowing lawsuits brought by private individuals seeking to enforce the law to proceed while litigation over the legality of the measure unfolds.

Kavanaugh wondered whether the court should close a loophole that he said the Texas law “exploited” in its precedents concerning when state officials can be barred from enforcing unconstitutional laws.

Kavanaugh also pondered if states could pass similar laws that could infringe other constitutional rights including gun rights. A state, for example, could allow for $1 million in damages against anyone who sells an AR-15 rifle, he said.

His tone was more skeptical during the argument over the Biden administration’s September lawsuit aimed at stopping the Texas measure, describing it as “different and irregular and unusual.”

Kagan said the law was written by “some geniuses” to evade the broad legal principle that “states are not to nullify federal constitutional rights.”

Like Kavanaugh, Kagan warned of the consequences of states passing laws that infringe upon rights, including same-sex marriage and religious liberty. If the Texas law remains, “we would live in a very different world to the world we live in today,” she said.

Conservative justices Clarence Thomas and Samuel Alito raised the question of whether anyone would have standing to sue under the Texas law without having a direct injury. Texas Solicitor General Judd Stone, defending the law, said “outrage” based on abortion opposition would be grounds to bring a lawsuit.

In the Biden administration’s challenge, conservative Chief Justice John Roberts questioned Solicitor General Elizabeth Prelogar on the “limiting principle” for the federal government suing states, noting that a different administration could also try to directly challenge states over their laws. Other conservative justices expressed similar doubts.

The Texas and Mississippi laws are among a series of Republican-backed abortion restrictions pursued at the state level in recent years. Lower courts blocked the Mississippi law.

LANDMARK RULING

Abortion opponents hope the Supreme Court will roll back abortion rights or even overturn its 1973 Roe v. Wade decision that recognized a woman’s constitutional right to terminate a pregnancy and legalized the procedure nationwide.

The Texas measure enables private citizens to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. That feature made it more difficult to directly sue the state. Individual citizens can be awarded a minimum of $10,000 for bringing successful lawsuits under the law. Biden’s administration has called it a “bounty.”

The Texas law has an exception for a documented medical emergency but not for pregnancies resulting from incest or rape.

The law’s design has deterred most abortions in Texas, which is the second most populous U.S. state, behind only California, with about 29 million people.

The Texas dispute reached the Supreme Court with unusual speed. The justices agreed to take up the matter on Oct. 22, bypassing lower courts that are considering the challenges.

(Reporting by Andrew Chung and Lawrence Hurley in Washington; Additional reporting by Jan Wolfe; Editing by Will Dunham)

U.S. Supreme Court to hear challenge to Texas abortion ban

By Andrew Chung

(Reuters) -The U.S. Supreme Court on Friday agreed to hear on Nov. 1 a challenge by President Joe Biden’s administration and abortion providers to a Texas law that imposes a near-total ban on the procedure – a case that will determine the fate of the toughest abortion law in the United States.

It is the second major abortion case that the court, which has a 6-3 conservative majority, has scheduled for the coming months, with arguments set for Dec. 1 over the legality of a restrictive Mississippi abortion law.

The Texas and Mississippi measures are among a series of Republican-backed laws passed at the state level limiting abortion rights – coming at a time when abortion opponents are hoping that the Supreme Court will overturn the landmark 1973 Roe v. Wade that legalized the procedure nationwide.

Mississippi has asked the justices to overturn Roe v. Wade, and the Texas attorney general on Thursday signaled that he also would like to see that ruling fall.

The justices on Friday deferred a decision on the Biden administration’s request that the justices block the Texas law while the litigation continues, prompting a dissent from liberal Justice Sotomayor. Lower courts already have blocked the Mississippi law.

It is rare that the Supreme Court would, as it did in this case, decide to hear arguments while bypassing lower courts that were already considering the Texas dispute, indicating that the justices have deemed the matter of high public importance and requiring immediate review.

The Texas measure bans abortion after about six weeks of pregnancy, a point when many women do not yet realize they are pregnant. It makes an exception for a documented medical emergency but not for cases of rape or incest.

The Biden administration sued in September, challenging the legality of the Texas law. In taking up the case, the Supreme Court said it will resolve whether the federal government is permitted to bring a lawsuit against the state or other parties to prohibit the abortion ban from being enforced.

The other challenge that the justices took up, filed by Texas abortion providers, asks the court to decide whether the design of the state’s law, which allows private citizens rather than the government to enforce the ban, is permissible. The providers, as well as the administration, have said the law is designed to evade federal court review.

Mississippi’s law bans abortions starting at 15 weeks of pregnancy. Rulings in that case and the Texas case are due by the end of June 2022, but could come sooner.

The Supreme Court previously allowed the Texas law to be enforced in the challenge brought by abortion providers. In that 5-4 decision on Sept. 1, conservative Chief Justice John Roberts expressed skepticism about how the law is enforced and joined the three liberal justices in dissent.

The Texas law is unusual in that it gives private citizens the power to enforce it by enabling them to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. That feature has helped shield the law from being immediately blocked as it made it more difficult to directly sue the state.

Individual citizens can be awarded a minimum of $10,000 for bringing successful lawsuits. Critics have said this provision lets people act as anti-abortion bounty hunters, a characterization its proponents reject.

The Biden administration had asked the Supreme Court to quickly restore a federal judge’s Oct. 6 order temporarily blocking the law. The New Orleans-based 5th U.S. Circuit Court of Appeals put that order on hold a few days later.

(Reporting by Andrew Chung in New York; Editing by Will Dunham)

Texas urges U.S. Supreme Court to maintain state’s abortion ban

By Andrew Chung

(Reuters) – Texas on Thursday urged the U.S. Supreme Court to keep in place a state law that imposes a near-total ban on abortion while it defends the Republican-backed measure against a legal challenge brought by President Joe Biden’s administration.

Texas Attorney General Ken Paxton responded in a legal filing to the U.S. Justice Department’s request that the Supreme Court quickly block the state law while the court battle over its legality goes forward.

The Supreme Court, which has a 6-3 conservative majority, previously allowed the law to be enforced in a separate challenge brought by abortion providers. In that 5-4 decision on Sept. 1, conservative Chief Justice John Roberts expressed skepticism about how the law is enforced.

The Texas measure, one of a series of restrictive abortion laws passed at the state level in recent years, bans the procedure after about six weeks of pregnancy, a point when many women do not yet realize they are pregnant. It makes an exception for a documented medical emergency but not for cases of rape or incest.

(Reporting by Andrew Chung; Editing by Will Dunham)

U.S. Justice Dept. to ask Supreme Court to put Texas abortion law on hold -spokesman

(Reuters) -President Joe Biden’s administration on Friday said it will ask the U.S. Supreme Court to block a restrictive Texas law that imposes a near-total ban on abortion after a federal appeals court reinstated the law.

The U.S. Justice Department will request the Supreme Court, which has a 6-3 conservative majority, to reverse the 5th U.S. Circuit Court of Appeals’ decision to lift a judge’s order blocking the law, while litigation over the dispute continues, a spokesman said.

The Texas measure, which bans abortion after about six weeks of pregnancy, took effect on Sept. 1. It makes an exception for a documented medical emergency but not for cases of rape or incest.

The law is unusual in that it gives private citizens the power to enforce it by enabling them to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. That feature has helped shield the law from being immediately blocked as it made it more difficult to directly sue the state.

Critics of the law have said this provision lets people act as anti-abortion bounty hunters.

(Reporting by Andrew Chung and Brendan O’Brien; Additional reporting by Sarah Lynch; Editing by Daniel Wallis)

U.S. Supreme Court weighs Kentucky official’s bid to defend abortion law

By Andrew Chung

(Reuters) – In another case stemming from a restrictive abortion law, U.S. Supreme Court justices on Tuesday signaled a willingness to let Kentucky’s Republican attorney general defend his state’s statute – struck down by lower courts – after its Democratic governor dropped the case.

The arguments heard by the nine justices did not involve the legality of the 2018 law, focusing instead on the narrow legal issue of whether Kentucky Attorney General Daniel Cameron can take over the defense of it in a bid to revive the measure.

The dispute highlighted the sometimes messy conflicts that arise when a governor and a state’s top legal officer differ in political views or party, leading to disagreements on whether to defend certain state laws in court.

Both liberal and conservative justices asked questions during the argument that indicated sympathy toward ensuring that Cameron, as attorney general, retains the power to act even after the political party of the governor changes hands.

Republican-backed abortion restrictions enacted by numerous U.S. states in recent years have continued to draw the attention of the nation’s highest judicial body.

Abortion rights advocates have said that Kentucky’s law would effectively ban an abortion method called dilation and evacuation – the most common form performed during the second trimester of a pregnancy – effectively banning abortions after 15 weeks of pregnancy.

The justices must decide whether Cameron can now try to defend the law after lower courts already ruled that it violated Supreme Court precedents holding that women have a right under the U.S. Constitution to obtain an abortion. Governor Andy Beshear’s administration dropped the case.

Abortion opponents are hopeful that the court, which has a 6-3 conservative majority, will pare back abortion rights this term. The justices will hear arguments in December over a Mississippi law that bans abortion after 15 weeks of pregnancy, a case in which that state is asking the court to overturn the 1973 Roe v. Wade ruling that legalized the procedure nationwide.

EMW Women’s Surgical Center, an abortion clinic in Louisville, challenged Kentucky’s law, which was signed by then-Governor Matt Bevin, a Republican. Bevin subsequently lost his re-election bid to Beshear in 2019.

Liberal Justice Stephen Breyer noted during the argument that Republicans and Democrats often hold different views on abortion, and that after the new Democratic administration dropped the case Cameron stepped in.

“At that point for the first time we have an attorney general who thinks it’s a pretty good statute – he wants to defend it,” Breyer said “… So if there’s no prejudice to anybody – and I can’t see where there is – why can’t he just come in and defend the law?” Breyer asked a lawyer from the American Civil Liberties Union representing the abortion clinic.

The Beshear administration’s health department continued to defend the law in court after he took office. But after the Cincinnati-based 6th U.S. Circuit Court of Appeals struck it down in 2020, his administration decided not to press the matter further.

Cameron then sought to take over the defense. The 6th Circuit denied that request, saying it was too late for Cameron’s office to step in.

The Kentucky law is one of a growing number passed by Republican legislators at the state level imposing a variety of restrictions on abortion. The justices last month allowed a near-total ban on abortion in Texas to go into effect.

(Reporting by Andrew Chung in New York; Editing by Will Dunham)

Analysis-Judge’s ruling on Texas abortion ban a warning to copycats, for now

By Jan Wolfe

WASHINGTON (Reuters) – A U.S. federal judge’s decision blocking Texas’ near-total abortion ban is a warning to other states considering similar measures, though it too could be overturned by a higher court in the coming weeks.

Texas’ law banning the procedure from six weeks, a point when many women may not even be aware they are pregnant, took effect last month after the U.S. Supreme Court rejected a to halt it from taking effect, in a late-night decision that took no stance on the law’s constitutionality.

Rather, the Supreme Court allowed it to stand due to an unusual mechanism that leaves it up to private citizens to enforce the ban through civil lawsuits against anyone who “aids or abets” a woman obtaining an abortion – and provides a $10,000 bounty for those who do.

U.S. District Judge Robert Pitman in Austin late Wednesday blasted the law as a “flagrant violation” of Roe v. Wade, the landmark 1973 decision that recognized a constitutional right to abortion.

Pitman, who was appointed by Democratic President Barack Obama, said he was particularly troubled by how the law named S.B. 8 outsources enforcement to private citizens, calling this an “unprecedented and aggressive scheme” to limit legal challenges.

That, legal experts said, was a clear warning to at least 12 other states contemplating similar action, including Florida, South Carolina and South Dakota, that there is now a route for the U.S. Department of Justice to challenge the structure of the ban.

“We are still at the early stages, and a lot depends on the court and judge assigned to the case,” said David Noll, a professor at Rutgers Law School. “But this is a first cut at the what the DOJ can do in response to this sort of law.”

Since the law went into effect, the four Whole Woman’s Health abortion clinics across Texas have seen patient visits plummet, some staff quit, and recruitment efforts falter. After the decision it said it was making plans to resume abortions up to 18 weeks “as soon as possible.”

DESIGNED TO AVOID CHALLENGE

By deputizing enforcement to private citizens, the law deliberately tried to insulate Texas from legal challenges filed in the federal court system, Pitman said.

“Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process,” the judge wrote. “It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.”

Texas Attorney General Ken Paxton, a Republican defending the law in court, said in a statement that his office disagreed with Pitman’s decision and was appealing to the U.S. Fifth Circuit Court of Appeals.

“The sanctity of human life is, and will always be, a top priority for me,” Paxton said.

At a recent court hearing, Paxton’s office argued the law was not designed to evade judicial review, and that offering incentives for private lawsuits is neither unusual nor unlawful.

For now, Pitman’s ruling is “a warning” to anti-abortion lawmakers who want to mimic the Texas approach to enforcing an abortion ban, said Jessica Levinson, a professor at Loyola Law School in Los Angeles.

Florida Republicans have already introduced a copycat bill with this mechanism, and lawmakers in Georgia, Arizona and West Virginia have said they want to follow Texas’ private enforcement approach.

But Levinson cautioned that Pitman’s ruling could be reversed, either by the Fifth Circuit or eventually the Supreme Court.

“I hope I’m wrong but I just don’t see a long lifespan for Judge Pitman’s ruling,” said Levinson, who called the Fifth Circuit the most conservative of the intermediate federal appeals courts one step below the Supreme Court.

The Supreme Court, which has a 6-3 conservative majority, on Dec. 1 hears arguments in a separate case involving a Mississippi law that bans abortions after 15 weeks of pregnancy. Mississippi has asked the high court to overturn Roe v. Wade.

John Seago, the legislative director for anti-abortion group Texas Right to Life, said the organization believes Judge Pitman will be reversed on appeal.

“We believe Senate Bill 8 is going to be upheld,” Seago said, adding that a “typical route” for this sort of case is a federal judge in Western Texas ruling in favor of liberal advocates but then getting reversed on appeal.

Florida State Representative Anna Eskamani, a Democrat from Orlando, said Republican lawmakers in her state should take heed from Pitman’s ruling and drop their plans for copying S.B. 8’s approach to enforcement.

“This sends a really strong message to those politicians that this sort of scheme is unlawful,” she said.

(Reporting by Jan Wolfe; Editing by Scott Malone and Rosalba O’Brien)