Written by Lynn Nichols
How a changing U.S. Supreme Court could impact reproductive rights for Ohioans
After the death of long-sitting justice and cultural icon Ruth Bader Ginsburg, President Donald Trump and the Republican-led Senate worked together to confirm Justice Amy Coney Barrett to the Supreme Court of the United States. Barrett’s confirmation marks the sitting president’s third SCOTUS pick in one four-year term, and cements a 6–3 conservative majority in the nation’s highest court.
Barrett has spoken publicly on her experience clerking for late Justice Antonin Scalia. She emphasized in her Senate confirmation hearing that she will not be a direct continuation of her mentor’s judicial record: “If I'm confirmed, you would not be getting Justice Scalia, you would be getting Justice Barrett.” But Barrett does align with Scalia as a constitutional originalist. In an essay for the National Constitution Center, Steven G. Calabresi defines originalism as a legal philosophy, whose adherents believe that “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Like Scalia, Barrett will interpret the Constitution as she believes the framers intended it.
Access to abortion and other reproductive freedoms are not explicitly mentioned in the Constitution, nor any of its amendments. Many abortion rights activists fear that, if Roe v. Wade were challenged in court, Barrett would join a conservative vote to overturn it. Some have also cited concerns about Barrett’s record as a judge for the federal appeals court in Chicago. During her three years on the court, Barrett presided over three cases involving abortion rights. The New York Times reported in November that, in two of these cases, Barrett joined dissents which argued that restrictive laws should be allowed to take effect. In the other case, according to NPR, Barrett did support “buffer zones designed to protect patients from protesters outside clinics.”
In her hearings, Barrett refused to say how she would rule in a hypothetical case, though she has said that she will respect precedent. But Donald Trump has made his plan for the Supreme Court clear: “I am putting pro-life justices on the court,” he said in a 2016 presidential debate. Even if Barrett does not commit to overturning Roe v. Wade, Americans who support abortion rights remain skeptical of her intentions.
Roe v. Wade limits what state legislatures can do to restrict access to abortion, but still leaves policy details to individual states. A later decision, Casey v. Planned Parenthood (1992), introduced a more ambiguous metric than the original trimester framework. States can ban specific procedures, close abortion clinics and pass other restrictive laws as long as they do not impose an “undue burden” on the person seeking an abortion. In Casey, SCOTUS ruled that a Pennsylvania law requiring spousal consent for an abortion was an undue burden, but a 24-hour wait period before the procedure was not. What constitutes an “undue burden” is subjective, and this allows states to limit access to abortion.
In 2019, Ohio became one of only eight states to pass a so-called “heartbeat” bill. Gov. Mike DeWine signed the bill into law in April of that year, as reported in The Columbus Dispatch. It would have made abortion illegal after a fetal heartbeat is detectable, six weeks into a pregnancy. By July, a federal judge blocked the law, citing it as an “undue burden” by the precedent set in Casey. It takes longer than six weeks for many people to even realize they are pregnant, and 90% of abortions in Ohio take place later in the term, according to July 2019 news coverage from Cleveland.com. So, the law went beyond being restrictive — it would have banned nearly all Ohio abortions.
Even without a “heartbeat” law, Ohio still has some of the most restrictive abortion laws in the country. As Alana Whelan wrote for The Vindicator in our March 2019 issue, former Gov. John Kasich signed 21 bills into law which limit access to abortion, whether by reducing funds to reproductive care facilities or banning specific procedures. Ohio requires a 24-hour waiting period, including mandatory counseling before the waiting period begins. That isn’t an undue burden by the standards of the Casey decision, but there are only nine clinics in the state which provide abortion care services according to NARAL Pro-Choice Ohio. People seeking an abortion need to arrange transportation for two visits, and if the nearest clinic is hours away, that may involve taking time off work or traveling overnight. These barriers can be insurmountable for teenagers, working adults and others who can’t afford such expenses.
For people who rely on Medicaid and public insurance, the cost of the procedure is another barrier to abortion care. Under the Hyde Amendment, public funds cannot be used for abortion except in cases of life-threatening risk, rape or incest. With so many logistical and financial concerns, a procedure may be delayed for weeks. But Ohio also restricts the timeframe in which a person can legally have an abortion. According to the Guttmacher Institute, the state outright bans abortion after 20 weeks, except in cases where continuing the pregnancy would be life-threatening. CNN reported in December 2018 that then-Gov. John Kasich signed a bill to ban a specific procedure called dilation and evacuation. This is the method used for most abortions in the second trimester, so Ohio effectively bans second-trimester abortions. This law includes an exception for cases where a pregnant person’s life is in danger, but not for rape or incest.
The history shows that Gov. Mike DeWine and Republican legislators will instate as many limits on abortion access as they legally can. Roe v. Wade and related decisions like Casey v. Planned Parenthood are the strongest defense Ohioans have. Organizations like the ACLU, the Center for Reproductive Rights, NARAL Pro-Choice Ohio and Planned Parenthood have been fighting for decades to secure abortion rights under the precedent of Roe v. Wade, but if the decision is overturned, activists will have fewer legal recourses. Some politicians have proposed action plans to protect abortion rights under the law. During her presidential campaign in 2019, Sen. Elizabeth Warren shared her plans for federal legislation which would incorporate Roe v. Wade into the U.S. legal code. Warren has continued to advocate for this policy with greater urgency since Justice Ginsburg’s death. In October, CBS News reported, then-candidate Joe Biden said in a town hall that, faced with the possibility of a reversal in the Supreme Court, he would work to “make Roe the law of the land.”
President-elect Biden will not have the power to unilaterally pass legislation. Federally codified protections for abortion rights hinge on the U.S. Senate. The balance of power for the upcoming Senate term will be decided by two runoff elections in Georgia this January. Supreme Court seats are lifetime appointments, so activists turn to legislative action and grassroots movements to make their voices heard. What happens on the national stage will help determine whether abortion stays legal, accessible and safe for people in Ohio.