Could New Abortion Bans Lose in Court?

Rachel Nix, 24, sits on a curb while processing the Supreme Court’s decision in Washington, D.C. Photo: Brandon Bell/Getty Images

The Supreme Court’s decision overturning Roe v. Wade is, without a doubt, the end of an era. For the foreseeable future, there is no constitutional right to abortion.

But Dobbs v. Jackson Women’s Health Organization is also the beginning of a new one: politically, legislatively, and legally. In fact, there are still ways to defend women’s rights in court, including some already underway. “There are opportunities to reduce the harm,” Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project, said in an interview hours after the Court’s decision. “And that’s the point where we are now.”

Avenues exist on both the state and federal levels.

Several states have guarantees of privacy, autonomy, and bodily integrity in their constitutions that are absent in the federal constitution. In Florida, for example, the ACLU and Planned Parenthood have already sued to stop a 15-week abortion ban on the basis of the state’s constitution, which contains a right to privacy. (Since the law is set to go into effect on July 1, the hearing on the ACLU’s motion for a preliminary injunction is this Monday.) In Utah, they filed suit on Saturday on the basis of several parts of that state’s constitution covering family rights and the right to privacy. Meanwhile, in Michigan, the ACLU won an injunction last month to stop the state’s 90-year-old abortion ban from going into effect once Roe v. Wade was overturned. A court there found that the ban violates the rights to liberty, bodily integrity, and privacy under Michigan’s constitution and civil-rights laws. Similar cases are pending in Ohio and North Carolina. “We have years of experience suing under state constitutions when there were laws that we couldn’t challenge federally,” said Amiri, citing the exclusion of abortion coverage from Medicaid as one example.

State laws can also be used to defend abortion rights where Religious Freedom Restoration Acts, or RFRAs, are in force. Under the RFRA, any time a law substantially burdens religious practice, the government must show that law is narrowly tailored to further a compelling state interest. Using that standard, state and federal courts have carved out numerous religious exemptions to laws to which conservative Christians, Jews, and Muslims objected, from LGBTQ+ nondiscrimination laws to COVID rules to requirements that prisoners be clean-shaven.

Now the shoe would be on the other ideological foot, with progressive people of faith arguing that the exercise of their religion demands bodily autonomy, or even, as in the case of traditional Jewish law, requires abortion if a woman’s life is in danger. Of course, liberal advocates may be reluctant to invoke the RFRA, which historically has been used against women’s and LGBTQ+ equality. But progressive women’s sincere religious beliefs are no less important than conservative men’s, and they fall within the same legal protections.

There is also hope on the federal level — again, not for overturning Dobbs but for reducing the harm it does in some cases.

At the end of Justice Samuel Alito’s 79-page majority opinion — on page 77, specifically — is a cursory section stating that since “procuring an abortion is not a fundamental constitutional right … States may regulate abortion for legitimate reasons” and that mere “rational-basis review” is the appropriate standard for reviewing challenges to abortion laws.

Though easily overlooked, that is a careless, wrong, and dangerous remark. It’s not based in settled law; in Amiri’s words, “Justice Alito is just trying to take every option off the table for any challenge to an abortion restriction.”

The reason Alito is wrong is the somewhat arcane doctrine of “standards of review.” Under rational-basis review, courts almost always defer to the government. If there is any rational basis for a law, courts must uphold it. It’s the lowest bar for a law to clear. But this is not how courts look at cases that burden constitutional rights, like women’s rights to equal protection under the law. In such cases, the bar is higher. Courts apply either “intermediate scrutiny” or “strict scrutiny,” which require laws to be more narrowly tailored.

The level of scrutiny often decides the outcome of a case. In Hobby Lobby, for example, the government clearly had a rational basis for including contraception coverage in employer-sponsored insurance plans. But because the Supreme Court required strict scrutiny, the government lost because its requirement was not narrowly tailored enough. As a result, the government had to give religious organizations and businesses an exemption to the requirement.

In the case of Dobbs, concerning Mississippi’s ban of abortions after 15 weeks’ gestation, it took Justice Alito only 157 words to uphold the law. The state “found” later abortions to be “barbaric” and “dangerous,” and since courts don’t question those findings under rational-basis review, the law was upheld. Done.

But this is the wrong way to evaluate abortion laws. Earlier in his opinion, Justice Alito stated, on the basis of a 1993 precedent, that “the ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus’ against women.” But invidious animus isn’t required to show that a particular law affects only one group of people (in this case, women), and abortion laws should thus be evaluated according to intermediate scrutiny, the standard used in claims in which the constitutional guarantee to equal protection under the law is at issue. Moreover, since neither Justice Brett Kavanaugh’s nor Chief Justice John Roberts’s concurring opinions mentioned this aspect of the majority opinion, the question of standard of review remains open for the Court to consider.

Now consider a challenge to Missouri’s abortion ban, which immediately went into effect. This law has no exceptions for rape or incest. Under the Court’s new rational-basis review, that ban is almost certainly constitutional because Missouri can simply decide that the state’s interest in protecting “potential life” justifies it.

But suppose a federal court applied intermediate scrutiny instead of rational basis. Under that standard, a law must “further an important government interest” and “must do so by means that are substantially related to that interest.” It’s not clear that Missouri’s no-exceptions ban passes that stricter test. Is the state’s interest in every single “potential life” so “important” that there is no weight given to the pain and suffering of a victim of rape or incest being forced to carry her abuser’s or rapist’s baby? Would not the state’s interest also be furthered by a ban with a few limited exceptions that apply to only a few women each year?

Or consider the states eyeing laws that would criminalize women traveling out of state to obtain an abortion. There are many reasons these travel bans may be unconstitutional: the commerce clause, which prohibits states from restricting interstate commerce, or the principles of federalism. But if intermediate scrutiny were to be used, since the bans apply only to women seeking abortions, they may fall on equal-protection grounds as well. What is the “important government interest” that is furthered by what happens in another state, governed by a different government?

In sum, if the standard of review is successfully litigated, that could open the door to challenge some of the strictest laws, at least in certain cases. It’s hardly a slam dunk, but it is a path to harm reduction.

To be sure, none of these actions will bring Roe back. But just as anti-choice activists chipped away at Roe for 49 years, so pro-choice activists can try to chip away at Dobbs, one case at a time.