Supreme Court decision on HB2 shifts abortion battle to state bans

The battle over abortion was expected to shift to measures focusing on the fetus in the wake of the U.S. Supreme Court’s decision striking down a Texas law enacted in the name of maternal health.

The 5-3 ruling held that Texas clinic regulations put an undue burden on women seeking abortion, a right established in the court’s landmark 1973 Roe v. Wade decision.

The ruling could affect similar laws in more than a dozen states and stands as the biggest affirmation of abortion rights in more than two decades.

Opponents said they would regroup, turning their attention to defending and expanding laws that ban abortion after 20 weeks gestation or sooner.

But this path could be difficult as well. The Supreme Court has not taken up any outright ban on abortion tied to fetal gestation in decades and has repeatedly rejected pleas by states to endorse such laws.

“We believe that, even before today, these laws were very likely to be struck down because they are unconstitutional bans on abortion,” said Emily J. Martin, general counsel for the National Women’s Law Center. “Today’s decision only strengthens that conclusion.”

Abortion opponents acknowledged the defeat but vowed to press on.

“The pro-life movement takes two steps forward and, occasionally, a step backward,” said Carol Tobias, president of the National Right to Life Committee.

More than a dozen states now have provisions banning abortions after 20 weeks, “and, and we are going to be pushing that,” Tobias said.

Nebraska enacted the first 20-week ban in 2010. Since then, similar laws have been adopted in Alabama, Arkansas, Georgia, Indiana, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, West Virginia, and Wisconsin, according to the Guttmacher Institute, a nonprofit research organization that supports abortion rights. Mississippi’s law bans abortion after just 18 weeks.

Abortion opponents said they also planned to step up efforts encouraging states to limit second term abortions through bans on the use of dilation and extraction method. Nine of 10 abortions in the United States are performed in the first trimester. But the dilation and extraction method is the most common procedure used for second trimester abortions.

Kansas and Oklahoma adopted bans on the procedure last year, but those laws have been blocked by courts. West Virginia, Mississippi, Alabama and Louisiana passed laws this year; none has yet to draw challenge.

The Supreme Court has turned away state efforts to revive bans struck down by lower courts. Earlier this year, it rejected Arkansas’ bid to revive a ban on abortions after 12 weeks of pregnancy.

The Supreme Court turned away North Dakota's effort to revive a law that banned most abortions once a fetal heartbeat could be detected, as early as six weeks after conception. And, in 2014, it declined to hear Arizona's appeal of a lower-court ruling invalidating a ban on the procedure at 20 weeks.

Before Monday, the last time the court had taken up an abortion rights case was in the 2007 dispute over a federal ban on a procedure critics call "partial birth abortion." The procedure, known medically as "intact dilation and extraction," involves a physician removing most of the fetus intact rather than dismembering it.

By a 5-4 vote, the court upheld the procedure. Writing the majority opinion, Justice Anthony Kennedy referred to moral issues and Congress’s findings that the procedure would not be necessary for the health of the mother. In Monday’s case, Kennedy joined the majority decision that the Texas law lacks the medical benefits to justify the burden it places on women’s access to abortion.

(Reporting by Jilian Mincer; Additional reporting Lawrence Hurley and Joan Biskupic; Editing by Lisa Girion)