A drama unfolding before the Supreme Court threatens to reshape abortion and the third trimester in America.
In a historic case at the nation’s top court, two judges on the 11th Circuit Court of Appeals are poised to side with the abortion-rights movement in a big way. They plan to rule that a law passed by Florida, Missouri and Alabama to block late-term abortions was unconstitutional because of a perceived conflict with Roe v. Wade.
In 1992, the Supreme Court legalized abortion until the moment of birth, as well as dinged state regulations limiting the procedure in later stages.
If the new ruling stays on track, the justices could leapfrog the first two decisions back to Planned Parenthood of the Heartland and other abortion clinics hoping for a new high court swing vote. Then, the court will likely revisit the issue again, opening the door for nationwide restrictions.
The ruling in the Missouri case involved a woman who was four months pregnant when she developed a permanent venous clot and went into an induced coma. Doctors were forced to perform an emergency cesarean section, a procedure that could endanger her unborn child. Missouri lawmakers passed a law banning abortions in the second trimester — after 20 weeks gestation.
Two U.S. circuit courts struck down the Missouri law, saying the statute interferes with the right of privacy in the Constitution. But the 11th Circuit Court of Appeals decided in February that the law is constitutional because the Supreme Court has left in place ambiguous language in the decision that states can regulate late-term abortions.
Reversing course, the court plans to hear the Florida and Alabama case.
A victory for the abortion-rights movement on both issues, and the justices would eliminate more states with the most stringent anti-abortion laws and undercut lawmakers intent on further narrowing the definition of abortions.
“It would tell these states: We’re not going to interfere with your right to govern yourself,” said Blair Riggs, an attorney at the Center for Reproductive Rights who represents the abortion-rights-affiliated clinics.
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The 11th Circuit has been considering the case since 2015, while courts have been weighing the challenges to Oklahoma and Georgia late-term abortion bans.
Clinics argue that their practice is helping them serve the public and that taking away their ability to use those clinics prevents women from getting a safe abortion early in pregnancy, and that women and families sometimes will go to clinics miles away to end the pregnancy.
“The circumstances that lead to crisis pregnancies become so far out of everyone’s control that getting that safe and affordable care becomes difficult and time-consuming,” said Brigitte Amiri, an attorney with the ACLU’s Reproductive Freedom Project.
The case is a test of the role of abortion clinics outside the more restrictive states. Clinics have pushed the argument that so long as they’re regulated in the same way in different states, they can continue to be useful for women seeking abortions.
The ruling in the Missouri case could come as early as June, with the Alabama and Florida cases coming soon after.
The other two circuits fighting for the abortion-rights position are split, with just one ― the 7th Circuit, in Chicago ― saying such late-term bans are not clearly unconstitutional.