State abortion laws

MARY REICHARD, HOST: It’s Tuesday, the 7th of August, 2018.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up, we’ll talk about abortion and the Supreme Court.

Abortion-industry activists are worried about President Trump’s nominee to replace retiring Justice Anthony Kennedy. They fear Judge Brett Kavanaugh will help create a majority on the high court to overturn Roe v. Wade, the decision that legalized abortion. 

REICHARD: Right after Kavanaugh’s nomination last month, a group of lawmakers got together to voice their opposition to him. Let’s listen to a clip of Senator Kamala Harris, Democrat from California.

HARRIS: Listen, if you are a young woman in America, or you care about a young woman in America, pay close attention to this nomination. It’s about government taking on the decision about a woman and what she does with her body, instead of giving that woman and her family and her god the power to make the decision for herself.

REICHARD: WORLD Radio’s Anna Johansen has looked into all this and is here to talk about it. Anna, obviously there’s a lot of hype around this, I’d say even some hysteria.

ANNA JOHANSEN, REPORTER: I think a lot of people are forgetting that even if Roe v. Wade is overturned, it won’t automatically make abortion illegal. The only thing it’ll do is give the decision back to the states. Each individual state will decide if they want to pass laws restricting abortion, or if they want to make it even easier to access. So with that in mind, abortion advocates are using this uproar about Brett Kavanaugh to push laws on the state level.

Massachusetts lawmakers just passed the NASTY Women Act. That’s an acronym and it stands for Negating Archaic Statutes Targeting Young Women.

REICHARD: Let me get that straight: Negating Archaic Statutes Targeting Young Women?

JOHANSEN: Yes. It repealed a set of laws restricting abortion, so that if the Supreme Court ever did overturn Roe, abortion would be still be entrenched in Massachusetts. The act was introduced earlier this year, but it didn’t get much traction until Brett Kavanaugh’s nomination. Then all the panic gave the bill enough momentum to get through the legislature.

REICHARD: OK. Let’s talk about what the ‘overturning Roe’ process might look like.  

JOHANSEN: Yea, that’s another thing. It’s not like Kavanaugh will hit the bench, pull out Roe v. Wade and say, “Okay, time to get rid of this.” Even using the word ‘overturn’ is a little misleading in some ways. I talked to Steve Aden about this. He’s the chief legal officer for Americans United for Life. He used the phrase ‘reassessing the continuing relevance’ of Roe.

REICHARD: That’s not the catchiest phrase is it?

JOHANSEN: Right, not as catchy as ‘overturn.’ But basically, a case has to make its way up from the lower courts, and then the Supreme Court would decide if Roe should still be applied to U.S. laws.

REICHARD: Can you give us an example?

JOHANSEN: Sure. Right now, Ohio has a law that prohibits abortion after 20 weeks. That’s when most people agree a baby can feel pain. Remember, Roe said you cannot prohibit abortion pre-viability, or the point in development when a baby can survive outside the womb. In most cases, that’s 24 weeks. So this 20-week ban is technically outside of Roe. Somebody could challenge it. It would go through the court system and could eventually make it to the Supreme Court. Then they would reassess the continuing relevance of Roe v. Wade. And then the Supreme Court could rule that the states are allowed to have a restriction before viability. That would give the green light for other states to add restrictions—or take them away.

REICHARD: Why hasn’t it been challenged?

JOHANSEN: Some pro-lifers think it’s a deliberate choice. I talked to David O’Steen from the National Right to Life. He thinks that abortion advocates have chosen not to challenge the 20-week ban because they’re afraid it will be upheld by the Supreme Court, and that would be a huge blow to Roe v. Wade.

But even if that 20-week ban doesn’t make it to the Supreme Court, another case will at some point. It’s actually been happening for decades. In 1975, the court ruled that only a doctor could perform an abortion. In 2007, it upheld a law banning partial-birth abortions. And each time a case comes up, it’s another chance to talk about Roe.

REICHARD: Anna, thanks for looking into this and bringing clarity to what the process actually would be.

JOHANSEN: Thanks, Mary.

(AP Photo/Susan Walsh, File) In this July 10, 2018, file photo, Senate Majority Leader Mitch McConnell of Ky., left, speaks as he talks about Supreme Court nominee Brett Kavanaugh, center, as Vice President Mike Pence, right, listens, during a visit Capitol Hill in Washington. 

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