THE KAVANAUGH EFFECT: Groups Ask SCOTUS To Hear Case That Could Overturn Roe

A group of organizations have called on the Supreme Court to hear a case that could trigger the court to overturn the infamous Roe v. Wade case that legalized abortion.

The group comprised of the Southern Baptist Ethics & Religious Liberty Commission, National Association of Evangelicals, Concerned Women for America, National Legal Foundation and Pacific Justice Institute, filed a brief on November 15 with the Court asking the justices to review an Indiana case which blocked enforcement of a law signed by then-Governor Mike Pence in 2016 that required doctors to inform their patients that abortions were not permitted because of the unborn baby’s “race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.” The justices could decide to overturn Roe and the 1992 Planned Parenthood v. Casey opinion that reaffirmed Roe. Justice Anthony Kennedy, who was replaced by Justice Brett Kavanaugh, voted to side with Planned Parenthood in 1992.

After Pence signed the law, Planned Parenthood of Indiana and Kentucky challenged it; a federal judge permanently blocked the state from enforcing it, as the Baptist Press reports. In April 2018, a three-judge panel of the Seventh Circuit Court of Appeals in Chicago agreed with the federal judge. Judge William Bauer, writing for the court, noted that Roe recognized a right to privacy “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” that “this right is not unqualified,” and that it must be balanced “against important state interests in regulation.” He added of the Indiana law:

The non-discrimination provisions clearly violate this well- established Supreme Court precedent, and are therefore, unconstitutional. The provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose. These provisions are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.

The group asking the Court to hear the state of Indiana’s appeal of the decision is also asking the Supreme Court to reconsider Roe because the scope of Roe was so wide, invalidating all state restrictions on abortion. That query would also affect the 1992 Planned Parenthood v. Casey opinion that reaffirmed Roe.

The brief before the Court argues that states have a “compelling interest” in prohibiting discrimination on the basis of sex, race and disability in abortions, and asks for a review of the Seventh Circuit decision because the Supreme Court has not yet addressed the issue. The brief states that the Seventh Circuit decided the Supreme Court’s “abortion precedent, even though that precedent has never directly addressed the issue presented by the statute under review, holds that the abortion right overrides all others. That grievous error, which allows unborn children to be killed because of their sex or race or disability, should be corrected as soon as possible.”

The brief also notes the Seventh Circuit’s interpretation of the 14th Amendment, “which was passed in large part to stamp out racial discrimination, [being] in conflict with itself. It has ruled that the right to abort, which this Court has found springs implicitly from the [14th] Amendment, always trumps a right against racial discrimination which directly flows from it.”

It is possible that the Supreme Court could side with the state of Indiana and decide the law is constitutional without touching Roe. Attorney Rick Claybrook, who wrote the brief, told the Baptist Press that the case offers the Supreme Court the opportunity to consider how “the abortion license” as adumbrated by the court and the “the very strong principles with respect to nondiscrimination on the basis of categories which are inherited, that one can’t do anything about” cross paths. He added that although the justices could find for Indiana without touching Roe, they could also argue, “[T]his law seems to be in tension with other law, so what is causing the tension? Maybe an over-expansive view of the abortion license as [we] have interpreted it. (The court) could fix it by cutting back on Roe or Casey.”

By November 1, 2018, only North Dakota had banned disability-based abortions; only Arizona, Arkansas, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania and South Dakota had banned sex-selected abortions, according to the Guttmacher Institute. The Baptist Press notes, “A review published in 2012 reported an 85 percent rate of abortion after a Down syndrome diagnosis in hospital-based studies.”