The Supreme Court heard arguments Wednesday in an abortion case that could have national ramifications — including here in North Carolina — when the ruling comes out, likely sometime next year.
National legal observers said Wednesday that the court appears open to overturning all or part of the landmark Roe v. Wade decision from 1973 confirming abortion rights, and local experts reiterated that to The News & Observer after the arguments concluded.
Abortion has recently been in a legal gray area in North Carolina, due to the state’s 20-week abortion ban being ruled unconstitutional. But the experts said if the Supreme Court rules in favor of Mississippi in the case heard Wednesday it would clear that up and allow North Carolina to once again outlaw abortion after 20 weeks in most cases.
“I think the safe money is on five or six votes on overruling Roe and Casey,” said Neil Siegel, a Duke University Law School professor who follows the Supreme Court closely. Casey refers to the 1992 case Planned Parenthood v. Casey, which upheld the Roe v. Wade ruling from two decades prior.
The case in front of the court right now is about a Mississippi law that bans abortions after 15 weeks into a pregnancy. The precedent set in Roe is that abortions must be allowed until after “viability” which is generally around 23 or 24 weeks.
What it means for North Carolina
For a long time, the state had a 20-week abortion ban on the books, and Republicans added some new restrictions in recent years.
The ACLU sued over that ban in 2016 and won. In 2019 a Republican federal judge ruled that due to Roe, the law was unconstitutional. Earlier this year, the federal 4th Circuit Court of Appeals upheld that ruling.
“North Carolina law criminalizes all non-emergency abortions performed after 20 weeks, without regard to the type of procedure or how the abortion is obtained,” wrote judge William Osteen, a George W. Bush appointee, in the 2019 ruling.
But if the Supreme Court were to OK Mississippi’s 15-week ban, Siegel said, that would likely stop any legal challenges to North Carolina’s 20-week ban as well. And that now appears highly likely to happen, Siegel said. The real question, he said, is whether the Supreme Court gets rid of abortion protections entirely or if they just revise Roe’s 24-week standard down to 15.
“It’s just a matter of how much damage are you willing to do,” he said. “If they do that now, I think it’s going to add fuel to the fire for the court-packing discussions. And it’s going to dominate the midterm elections.”
Could NC pass a new law?
If the court rules for Mississippi, expect more proposed restrictions on abortion in North Carolina, said Rebecca Kreitzer, a UNC-Chapel Hill professor who studies the politics and policies surrounding abortion. And those proposals would likely become law, she said, if Republicans gain a veto-proof supermajority in the 2022 elections for state legislature or win the governor’s office in 2024.
“If this Mississippi case is upheld I think it’s highly likely that Republicans would introduce a bill,” she said.
In recent years Democratic Gov. Roy Cooper vetoed multiple GOP attempts at more restrictive abortion laws. While some Democrats have voted with Republicans on those bills, there hasn’t been enough Democratic support to override Cooper’s veto.
The GOP appears well-positioned in 2022, since the party that doesn’t control the White House historically does well in midterm elections. Plus, Republicans had control of redistricting in North Carolina this year, drawing new maps that will likely give themselves more seats in both Congress and the state legislature, even if they they don’t win more votes than in the past, The News & Observer has reported.
If the justices go with the 15-week limit, Kreitzer said, it would present a challenge to North Carolina Republicans the next time they have enough power to pass an abortion law: Whether to adjust the state’s 20-week ban down to 15 weeks or to pass something even stricter, knowing it will get sued over but hoping for another court win down the line.
“It really depends on who is on the Supreme Court on the day they are interpreting the case,” she said.
A former clerk to the late Justice Ruth Bader Ginsburg, Siegel served as a special counsel or adviser to Democratic Sen. Chris Coons during the Supreme Court confirmation hearings for Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — and as a special counsel for then-Sen. Joe Biden, now the president, during the confirmation hearings for John Roberts and Samuel Alito.
He said he was somewhat surprised that Barrett and Kavanaugh both seemed during Wednesday’s arguments to openly acknowledge wanting to overturn past precedent regarding abortion rights. He wondered if it might backfire on conservatives who support that same goal, and push more mainstream Democrats to embrace the court-packing push that’s popular on the far left and would involve adding more justices to the nine-member court.
The Supreme Court striking down Roe could also put more pressure on Congress to pass a nationwide abortion law, Siegel said.
“It’s going to be important for North Carolinians to pay attention to control over Congress,” he said.
With Congress potentially taking a more active interest in abortion if the Supreme Court undoes Roe, he said, it may also make Democrats more cautious about getting rid of the filibuster in the Senate — which some want to do to pass a voting rights bill — because that could open the door for Republicans to ban abortion nationwide the next time they control Congress and the White House, if the Supreme Court does undo the protections in Roe.
“If you had unified Republican control in 2024, and they were willing to get rid of the filibuster to do it, you could have a national ban on abortion,” Siegel said.
Like Siegel, Kreitzer also wondered if the Supreme Court’s ruling would increase public support for adding more justices to the court.
Public polling showed trust in the court dipped earlier this year after the Supreme Court declined to immediately overturn a controversial abortion law in Texas, she said, and ruling to overturn Roe v. Wade might further that distrust.
“There could be a backlash,” she said.
According to the most recent Gallup Poll around 19% of Americans think abortion should be fully illegal, and 32% think it should be fully legal. Another 48% think it should be legal but with restrictions.
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