Are New US Abortion Laws Unconstitutional?

Some political issues in the United State are so controversial and taboo that even those who determine the supreme law of the land don’t want to talk about them. Currently, one of these issues is a woman’s right to access abortion services. Since the historic 1973 Supreme Court decision on Roe v. Wade, abortion seemed to be a “case closed” topic, but the fight has been reignited in full force with President Trump’s 2016 campaign and the shifting of the Supreme Court bench’s ideological and party alignment. Most recently, there has been debate over an Indiana bill signed into law by then governor and current vice president Mike Pence, which has been waiting for a decision by the Court since early January 2019.

The state of Indiana has some of the strictest abortion laws in the country, which have a history of being labeled unconstitutional and blocked from going into effect by a court of law. House Enrolled Act 1337, signed in March 2016, and was blocked by the 7th Circuit Court of Appeals. Judge William J. Bauer named the bill’s provisions unconstitutional and wrote, “The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.” This bill has been waiting for a Supreme Court decision since just a week after Judge Brett Kavanaugh’s confirmation.

On 22 January, the Supreme Court declared the Iowa “fetal heartbeat bill” unconstitutional. On Thursday 7 February 2019 the Supreme Court blocked a Louisiana law which requires a “doctor to have admitting privileges at a hospital within 30 miles of the facility where the abortion is performed.” The first of the “heartbeat bills” began in 2011 in Ohio, which never passed but inspired many other state legislatures to create similar bills of their own. The first to make it to a supreme court was from North Dakota in 2013, but the court declined the case and upheld the lower court’s decision to block the law.

The laws keep failing because the Supreme Court has held since Roe v. Wade and other cases “that a state cannot ban abortion before viability.” According to Elizabeth Nash, the Senior State Issues Manager at the Guttmacher Institute, the viability of a fetus “is determined individually but on average is between about 24 and 28 weeks of pregnancy.” Even though they are continuously considered unconstitutional and many call them a violation of a woman’s right to her body, these bills will most likely to continue to pop up because of the active and influential anti-abortion groups throughout the United States. All of these laws, and many more, are trying to test the limits of Roe v. Wade, but they are affecting women’s access to vital health care from women’s clinics, which have closed or are being slowly de-funded by their state governments.