For decades, the abortion rights movement has been trapped in a game of legal whack-a-mole, batting back thousands of bans and restrictions on the procedure as they pop up in state after state. But its primary hammer in those fights — the 1973 precedent established by Roe guaranteeing the right to an abortion prior to fetal viability — is likely to disappear in a matter of weeks when the high court issues a final opinion. And when that comes, it could create an instantaneous paradigm shift: The very people playing legal defense around abortion rights will now be on the lookout for offensive maneuvers to challenged anti-abortion state laws.
For its part, the Biden administration has said it plans to wait for that final decision before unveiling any executive actions to protect abortion access, forcing reproductive rights groups and their lawyers to fast-track their own post-Roe game plans for bringing lawsuits against abortion bans with no exemptions for rape or incest that many states plan to impose.
They’re being forced to think “more proactively about what unique, novel arguments could be made,” said Greer Donley, a law professor at the University of Pittsburgh, who recently co-authored a paper in the Columbia Law Review on the legal battles ahead.
Some abortion rights groups, for example, have already sued towns that passed ordinances outlawing abortion and declared themselves “sanctuary cities” for the unborn. Others are readying for legal fights with states that attempt to ban travel across state lines for the procedure.
And while the abortion rights defenses of the past mainly involved constitutional challenges based on Roe and the equal protection clause, the new reality means brushing up on areas of law many reproductive rights groups may never have previously studied.
“The challenge of the coming era is that for so long, protecting abortion rights meant becoming an expert in things like substantive due process and the 14th Amendment,” Donley said. “But what’s coming down the pike will require everything: knowledge of FDA law and other health statutes, knowledge of criminal law because people are going to start getting arrested for abortions, laws around the U.S. Postal Service, because of people mailing abortion pills, questions about the use of federal land, the jurisdiction for inter-state conflicts — so many things.”
State constitutions could also help bolster claims for abortion protections, multiple groups told POLITICO. While some states explicitly recognize the right to an abortion in their constitutions, others have more vague language around privacy, gender equality and other issues that attorneys hope will enable them to effectively challenge abortion bans and restrictions going forward.
The Center for Reproductive Rights, for example, recently filed a lawsuit seeking to block a near-total abortion ban in Oklahoma based on the state constitution’s language about a right to due process.
“What a lot of people don’t realize is that the federal constitution has always been a floor, not a ceiling. State constitutions can and often do provide broader protections for their citizens,” said Kolbi-Molinas. “They’ve often been at the forefront. So it’s certainly an avenue to explore.”
Attorneys are also exploring a tactic long used by the anti-abortion side — religious freedom — as a tool to fight state bans on abortion. Specifically, they’re looking into mobilizing Jewish plaintiffs whose religion allows abortion and even requires it in some circumstances, such as a threat to the life of the mother.
“The Supreme Court has never ruled on the application of the free exercise clause of the First Amendment to the right to access abortion services,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “And there are religions which are supportive of abortion rights, and so a free exercise claim is absolutely on the table.”
The free exercise clause prohibits states from passing laws that substantially burden the ability of people to exercise their religious beliefs. Leila Abolfazli, director of federal reproductive rights at the National Women’s Law Center, said such cases brought by Jewish plaintiffs could present “a profound moment for a country that has only talked about abortion in negative terms for nearly 49 years.”
“Those types of cases really help people understand this is not a black-and-white issue,” she said. “People come to it with incredible passion and some with incredible religious beliefs that drive them, and that’s an important part that the other side has tried to dominate.”
Legal and activist groups are also pressing the Biden administration to pursue federal regulation that could set up these challenges for success. One option is to have the FDA drop the remaining restrictions on the abortion pill and put out guidance forbidding states from banning or restricting its distribution.
Though the pills are only approved for use within the first 10 weeks of pregnancy in the U.S., advocates argue it would be better than nothing.
The Justice Department or outside legal groups, Donley and her co-authors say, could also sue medical workers who report people to law enforcement for having abortions for violating HIPAA privacy laws. They could also file charges against hospitals that refuse to perform medically necessary abortions for going against the Emergency Medical Treatment and Labor Act.
But with major federal action uncertain, groups are also weighing how to take the fight to the most local level possible.
The ACLU and Democracy Forward teamed up earlier this month to sue Lebanon, Ohio — population just over 20,000 — for declaring itself an abortion-free zone and threatening charges against anyone who helps a person seeking an abortion, even a procedure outside city limits.
Their plaintiff was an usual one — the Ohio chapter of the National Association of Social Workers. Because social workers can counsel clients about pregnancy options and resources, the group argues its members could be criminalized for “simply doing their jobs.”
“With the Supreme Court set to determine the fate of Roe v. Wade and after nearly fifty years of settled precedent with respect to the right to privacy, this lawsuit makes it clear that, regardless of that outcome, the Lebanon ordinance violates other constitutional protections — including due process and free speech,” they wrote.
Still, all involved acknowledged that the legal system has its limitations — particularly with the current makeup of the federal judiciary. Those readying lawsuits say wins in the 2022 midterms, executive actions, and federal and state legislation will all be needed if Democratic voters and pro-abortion rights independents want to see any kind of return of Roe protections.