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What A Supreme Court Vacancy Might Mean For Abortion Cases


With the death of Ruth Bader Ginsburg, President Trump's fight for a second term has been reframed. Social conservatives have been energized by the possibility of another conservative on the Supreme Court and what that would mean for abortion in America. Dismantling Roe v. Wade has been a central issue for social conservatives for decades now. And there are a slew of other abortion cases set to filter up to the Supreme Court soon.

To talk more about those cases and how they might unfold is Mary Ziegler, professor at Florida State University College of Law. She's author of the book "Abortion And The Law In America: Roe v. Wade To The Present"

Welcome back to the program.

MARY ZIEGLER: Thanks for having me.

CORNISH: So I understand there are some 15 cases involving abortion restrictions at the state level in federal courts. So that's - you know, some stop before making it to the Supreme Court. Which of those cases are you watching closely?

ZIEGLER: Well, there are two right now that are actually relatively close to the court. The court has a petition from Mississippi asking the court to hear whether that state can ban abortion at the 15-week mark. But the court also has a chance to hear a case about medication abortion during the COVID-19 pandemic. Abortion rights activists had sued, essentially saying that requiring patients to see a doctor to get abortion medication during the pandemic was an undue burden. And a district judge agreed. The Trump administration is asking the court to reverse that ruling. Those could be taken by the court any day now.

CORNISH: I see there are some trends - right? - in laws that restrict abortion - for instance, quote-unquote "heartbeat bills," which ban abortion after the heartbeat of a fetus can be detected, also laws that insist on admitting privileges at local hospitals. What kinds of laws at the state level are gaining traction now?

ZIEGLER: Well, I think there are kind of two broad categories, right? There are the more sort of extreme laws, like heartbeat bills, that are designed to sort of force the court to overturn Roe in the near term. And some of those are relatively close to the Supreme Court. So for example, Georgia's heartbeat bill, which also recognized fetal personhood, is now working its way up to the circuit court level, so that could be headed to the high court soon.

The other category I guess you would frame as sort of more incremental restrictions that are designed to kind of hollow out abortion rights more gradually and set the stage for an eventual overruling but one that would be somewhat down the line. So two kinds of bills I'm watching in that category are laws that ban dilation and evacuation - which is the safest surgical abortion procedure - and laws that ban abortion for reasons of race, sex or disability selection. Both of those would have pretty powerful practical consequences, but they would also make the idea of an abortion right increasingly incoherent, which would, of course, have downstream consequences for Roe.

CORNISH: Over the last few years, we've seen that Chief Justice John Roberts has been a key swing vote of sorts. For instance, he was the deciding vote in June in a case that struck down abortion restrictions in Louisiana. Any reason to expect he might continue in that role?

ZIEGLER: Well, presumably, if the court adds another conservative member, as now seems increasingly likely, even if John Roberts were to join his more liberal colleagues again, which is far from inevitable, it wouldn't be enough.

CORNISH: Tell us more about that - what it means for the court without Ruth Bader Ginsburg and most likely with a conservative justice. Are some of these cases more likely to fall along the side of conservatives?

ZIEGLER: The possible kind of extreme outcomes when you're thinking about the timing of the overruling of Roe and even the possible recognition eventually of a right to life, which would mean a nationwide ban on abortions, not just in red states - I think those outcomes become more conceivable the more conservative the court becomes.

CORNISH: And the big question is about Roe v. Wade. What does it mean when people say it is in trouble legally? What do we know about the court so far that indicate that's the case going forward?

ZIEGLER: Well, I think of the court's current members, as we saw in June, there's a significant number that already seem to have doubts about, for example, whether abortion harms women or whether Roe has distorted our constitutional jurisprudence. And so all of those signs point to danger. So both from the standpoint of signals on the court and signals in American politics, we have every reason to believe that Roe is in jeopardy.

CORNISH: That's Mary Ziegler, professor at Florida State University College of Law.

Thank you for your time.

ZIEGLER: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.