President Trump’s pick for the Supreme Court begins his Senate confirmation hearing on Capitol Hill Tuesday. If confirmed, Judge Brett Kavanaugh will tip the court to the right and make overturning Roe v. Wade a possibility.
There are already abortion-related cases in the pipeline that could reach the Supreme Court in the next couple years.
The court could change abortion laws in a couple different ways if it overturns Roe v. Wade. One scenario that concerns abortion-rights advocates would be if the court chooses to narrowly reverse the central holding of Roe, which says that the right to an abortion is guaranteed in the Constitution. If that happens, then each state would have to decide whether it would legalize or ban abortion.
There are some states that have laws specifically protecting the right to an abortion in the absence of Roe. Other states have trigger laws that will immediately ban abortion if Roe is overturned.
“If the court were to return the question of abortion rights to the states, nearly half of the states would ban it if they could,” said Jessica Arons, Senior Advocacy and Policy Counsel for Reproductive Freedom at the ACLU. “Another handful of states would protect it very explicitly and a lot more of them would be in the middle, Pennsylvania among them.”
So what would happen here?
If Roe is overturned, the issue would return to Harrisburg, where Republicans control the legislature. Democratic Governor Tom Wolf supports abortion rights. His Republican opponent this November, Scott Wagner, supports “pro-life” legislation. The winner of their race could decide whether Pennsylvania abortion law will go back to where it was 45 years ago.
“We would be left with the state constitution,” said Sue Frietsche, senior staff attorney with the Women’s Law Project. “And there has not been a great deal of development of the abortion right under the state constitution.”
Frietsche said that right now, Pennsylvania's constitution has an equal rights amendment that prohibits the state from disadvantaging anyone based on sex. She said that provision could be used to prohibit criminalizing abortion.
Frietsche said that while Pennsylvania doesn’t have a trigger law that would immediately ban abortion, it does have a convoluted patchwork of abortion restrictions.
“The [Pennsylvania] health department, some years ago, was asked by Congress to produce all of the statutes and regulations and guidelines that govern the provision of abortion in Pennsylvania and they produced 1237 pages,” Frietsche said. “And you know what? They missed some. So we’re talking about a very, very over-regulated medical procedure.”
The Supreme Court could choose to rule in other ways. Horatio Mihet, of the anti-abortion-rights Liberty Counsel, said the court could go further and do more than just overturn Roe.
“If the rationale of the Supreme Court is that Roe was incorrectly decided, and that an unborn human has a right to life under the Constitution, then no state could continue to allow abortions,” Mihet said.
Mihet opposes abortion rights, but he and Jessica Arons at the ACLU do agree on one thing: It’s highly unlikely the court would outlaw abortion outright.
“Chief Justice Roberts in particular, I think, is very savvy,” Arons said. “He’ll look for more incremental ways to reduce abortion access and care, rather than want to go whole hog.”