We're three days out from President Donald Trump's planned announcement of his nominee to replace Supreme Court Justice Anthony Kennedy, who is retiring.
Kennedy — long seen as the swing vote on the court — looks likely to be replaced by a more hard-line conservative. In light of comments from Trump, who has committed to appointing judges who oppose abortion, abortion rights advocates are deeply afraid the new court will uphold a challenge to Roe vs. Wade, the 1973 decision that legalized abortion nationwide.
It's a high-stakes prospect here in Louisiana. If the court overturns Roe, a 2006 "trigger law" goes into effect, meaning abortion immediately is outlawed in the state in almost all circumstances, with exceptions only to save the life of the mother.
Like this year's ban on abortions in Louisiana after 15 weeks of pregnancy, these no-exception laws are an "aggressive" strategy by lawmakers that shows "an extreme hostility to abortion being legal," attorney Ellie Schilling says.
Schilling represents reproductive health care clinics here in Louisiana. She explains that trigger laws (also on the books in Kentucky, North Dakota and South Dakota) are designed to ban abortion without the need for any further action on the part of lawmakers, should Roe be overturned. Because of the conditions placed on the date when the legislation goes into effect — also like the 15-week ban, which only goes into effect if the Fifth Circuit Court upholds a similar ban in Mississippi — it has been insulated from a legal challenge.
But Louisiana women could begin seeing the effects of a more conservative court (or even an unfilled seat) even before Roe is overturned, Schilling says. The issue is ongoing litigation over restrictive abortion laws passed by Louisiana lawmakers, and the likelihood that a higher court upholds lower courts' decisions.
For example, the Fifth Circuit Court recently heard oral arguments regarding a legal challenge to a law that would require doctors at Louisiana's three abortion clinics to have admitting privileges at area hospitals; a decision could come down at any time. If the court upholds that law, it could shutter abortion clinics in New Orleans and Baton Rouge, leaving just one clinic in Shreveport to serve the state.
In the past, abortion rights advocates had counted on the Supreme Court to intervene when lower courts upheld restrictive abortion bans. The new court may not serve as that backstop. Even a vacant seat means attorneys are less likely to be able to obtain the five votes necessary to obtain an emergency stay against lower courts' decisions.
As clinics close, "that travel distance becomes insurmountable for a lot of women," Schilling says.
She points out that people without resources, such as low-income women, minors, and women who have experienced domestic violence (who may need to hide that they're getting an abortion from their partner) are especially vulnerable to restrictions on abortion services.
"As the number of clinics dwindle, the amount of time you have to wait to get an appointment grows. ... [You're] being pushed further into pregnancy," she says.
The lower court also will soon consider the challenge to Mississippi's ban on abortions after 15 weeks of pregnancy. If that law is upheld, (via a decision that probably will be made by this time next year, Schilling says), Louisiana's parallel law will go into effect.
It creates a perilous environment for women in the state, who may soon have have less time to amass the resources, secure and appointment and travel to get an abortion — assuming the procedure remains legal at all.
Schilling says although a challenge to Roe could come before the Supreme Court as soon as the October term, most observers think it will take longer. It could take the form of a gestational age ban (like Louisiana and Mississippi's 15-week laws), a ban on specific methods of abortion or bans on a woman getting an abortion for a certain reason (such as a genetic abnormality in the fetus, or based on fetal sex or race).
The current list of nominees, vetted by the conservative Heritage Foundation and Federalist Society, almost certainly comprises Roe-opposing judges, Schilling says. If one of those nominees is confirmed, it's bound to undo the Supreme Court's tacit role as a defense against restrictive state abortion laws.
"In the wake of Whole Women's Health [vs. Hellerstedt, a 2016 Supreme Court case affirming abortion rights], it was hopeful that the tide was starting to turn," she says.
"This is a huge setback that we could have quite the opposite within months ... that the entire balance of the court could shift for a generation."