Pence's Anti-Abortion Law Could Upend Roe v. Wade

By Jennifer Haberkorn, Politico

23 July 18

The Indiana law could let a newly configured Supreme Court reassess abortion rights.

n anti-abortion law Vice President Mike Pence signed as governor of Indiana could become the case that lets the Supreme Court reshape abortion rights as soon as next year.

The Indiana law — which prohibited abortion because of the gender, race or disability of the fetus, such as Down syndrome — was blocked by lower courts and is one of three significant anti-abortion state statutes that are sitting one level below the Supreme Court. If Indiana appeals this fall, and the justices accept the case, it could be the opening for a broader ruling on Roe v. Wade that could redefine abortion rights nationwide.

Pence could then take double credit for the anti-abortion movement’s ascendancy: The politician whose evangelical credentials helped carry conservative religious voters to President Donald Trump also helped deliver the high court case that could scale back access to abortion 45 years after Roe.

Throwing Roe into the “ash heap of history,” as Pence put it, has been his defining mission, the core of a political career that took him from Congress to the governor’s mansion to the vice presidency.

The Indiana legislation “is a testament to Vice President Pence’s long pro-life legacy,” said Clarke Forsythe, senior counsel at Americans United for Life, which advocates against abortion. “He was a leader in Congress on defunding Planned Parenthood going back to 2005, 2006. He raised the profile of the issue.”

Three months before Trump selected the then-governor as his running mate in 2016, Pence signed the bill, which pushes new legal issues to the forefront. Many of the prior court and political fights had centered on matters such as mandating waiting periods before an abortion, or instituting building codes so stringent that many abortion clinics would have to shut down.

Proponents of the ban say a fetus should not be aborted because of a disability or fetal abnormality. But the Indiana law, and a subsequent one passed in Ohio, have sparked a fierce and emotional debate about whether a woman should be forced to carry or deliver a child with a severe or life-threatening disability or condition.

As the legal battle over the Indiana law ascended through the court system, so did Trump’s candidacy. Pence’s anti-abortion bona fides convinced skeptics that Trump — a onetime defender of abortion rights — would work to end abortion and put “pro-life” judges on the Supreme Court.

The Trump-Pence administration has already instituted more conservative policies on reproductive health and teen pregnancy. It has reshaped the federal judiciary by appointing conservatives at all levels, including a record number of judges at the courts of appeal. Trump elevated Neil Gorsuch to the Supreme Court, and if his second high court nominee, Brett Kavanaugh, is confirmed, he would swing the court’s political leaning to the right.

In the past, the Supreme Court justices appeared to be closely divided on abortion, and they accepted only a small fraction of the abortion-related cases they are asked to hear. Activists on both sides of the abortion debate believe Kavanaugh would change the court’s dynamic and that a challenge to Roe is all but inevitable.

“There is no question that at least one if not more [of the three cases] could be there next term,” said Helene Krasnoff, senior director of public policy, litigation and law at Planned Parenthood. “Any case that the court takes gives them an opportunity to opine on whether or not the Constitution protects” access to abortion.

It is not yet certain whether Indiana will appeal, whether the court would accept the case or how broadly the justices might rule. Rep. Jim Banks (R-Ind.), who sponsored the legislation in the Indiana Statehouse, certainly favors fighting for it. “I hope the attorney general will press it to the Supreme Court,” Banks said. “Obviously, Gov. Pence at the time signed it and championed it.”

All three of the key state cases, including Indiana’s, directly conflict with the Roe ruling, so any one of them would give the justices an avenue to reverse or significantly narrow the 1973 abortion rights decision. In addition, the lower courts are filled with reproductive health cases, some involving Planned Parenthood funding or the federal Teen Pregnancy Prevention Program, that could also shape abortion policy.

Pence and other White House officials say Kavanaugh was not asked his opinion on Roe as part of the selection process. But Kavanaugh’s name was on a list approved by the conservative Federalist Society — and Trump made a campaign pledge to appoint “pro-life” justices to the court.

A spokesman for Indiana Attorney General Curtis Hill, who in recent weeks has been accused of inappropriately groping women, said the office had no decision to announce yet on whether it would appeal lower court rulings that have blocked the statute. The office has until late September.

The two other major cases come from Alabama and Texas, which both passed bans on a common second-trimester abortion procedure called dilation and evacuation. If upheld, the ban would make abortion after 14 weeks of gestation almost impossible. Some legal experts say those cases might be more enticing for the Supreme Court to review. There are parallels to how the anti-abortion movement, after court fights, successfully enacted federal legislation against another second-trimester abortion procedure in the early 2000s.

When he blocked the Indiana law, 7th U.S. Circuit Court of Appeals Judge Daniel Manion made clear that he wants the Supreme Court to weigh in. He noted that in the 1992 Planned Parenthood v. Casey ruling, which defined how far states could go in limiting abortion, “the purported right to have a pre-viability abortion is more ironclad even than the rights enumerated in the Bill of Rights.

“Only a majority of the Supreme Court or a constitutional amendment can permit the States to place some limits on abortion,” Manion added.

Legal experts on the anti-abortion side are more skeptical that even if given the chance, the court would quickly move to undo the Roe decision, at least not unless even more conservatives are named to the court.

“I question whether the court is interested in revisiting Roe even by five [votes]. I think there’s going to need six or more,” said Forsythe, the AUL lawyer.

For Pence, the prospect of an Indiana law delivering an abortion debate to the Supreme Court could bring his anti-abortion résumé full circle.

As a House member, he introduced the first bill to defund Planned Parenthood in 2009. As governor, he signed half a dozen anti-abortion bills. In a CNN interview this month, he reiterated unequivocally that he wants to see the Roe decision overturned.

“I do, but I haven’t been nominated to the Supreme Court,” he said, adding that he and Trump “will continue to be a pro-life administration.”