The U.S. Supreme Court faces a decision soon on whether to dive back into the contentious issue of abortion and consider allowing states to enforce new, stricter laws, including one from North Carolina.
Since 2010, Republican-led states have passed an array of abortion-related laws. Some limit the time period during which women may obtain an abortion. Others set new restrictions for clinics, doctors or the drugs that induce early abortions.
Most of the new laws have been blocked or struck down by federal judges. On Friday, the 9th Circuit Court of Appeals struck down an Idaho law that banned abortions after 20 weeks. And until now, the Supreme Court has refused to hear states’ appeals to such cases.
For years, the justices have steered clear of most abortion cases. A decision to turn down the latest appeals, from North Carolina and Mississippi, would be a victory for abortion rights advocates. Abortion rights groups have argued that strict regulations imposed by conservative states were designed not to improve health care, but to deter and prevent pregnant women from getting legal abortions.
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But attorneys for both states have asked the justices to consider reviving their laws.
At the Supreme Court, justices could announce as soon as Monday whether they will hear the Mississippi case. A decision on whether to hear North Carolina’s appeal should come by mid-June.
“It is high time for this court to revisit the issue” of abortion, Mississippi Attorney General Jim Hood told the justices in a brief filed in early May.
North Carolina Attorney General Roy Cooper is asking the Supreme Court to revive a North Carolina law that requires providers to perform an ultrasound at least four hours before an abortion and place the images where the woman can see them. Providers are then supposed to describe the dimensions of an embryo or fetus, even if the patient tries to look away or blocks her hearing.
The plaintiffs, including state and national chapters of the American Civil Liberties Union, Center for Reproductive Rights and Planned Parenthood, challenged the constitutionality of the North Carolina law, saying it violated the First Amendment because it “hijacks a provider’s voice” to deliver the state’s ideology to patients.
The state countered that there is no First Amendment right to practice medicine and that the requirements fall under the government’s authority to regulate professions.
In December, the 4th Circuit Court in Richmond, in a 3-0 decision, upheld a judge’s order blocking enforcement on First Amendment grounds.
The government may not force a doctor to serve as “the mouthpiece for the state’s message,” the judges wrote. The law “compelled speech” by doctors that is “ideological in intent and in kind. ... The clear and conceded purpose of the requirement is to support the state’s pro-life position,” Judge J. Harvie Wilkinson III, a leading conservative jurist, wrote in his opinion blocking the state from enforcing the law.
In Mississippi, Hood is defending a 2012 law that requires all physicians at an abortion clinic to have admitting privileges at a nearby hospital, even if none of those hospitals will extend privileges to doctors who perform abortions.
The Jackson Women’s Health Organization, the only abortion provider in Mississippi, had three doctors, only one of whom had the required admitting privileges. An adverse ruling would close the clinic.
A federal judge blocked the law from taking effect, and last year the 5th Circuit Court of Appeals in New Orleans agreed.
The state said its abortion restrictions did not put an “undue burden” on women from Mississippi because they could cross state lines and obtain abortions in Memphis, Tenn., or Baton Rouge and New Orleans in Louisiana. But the appeals court judges rejected that argument.
“Mississippi may not shift its obligations to respect the established constitutional rights of its citizens to another state,” Judge E. Grady Jolly wrote in a 2-1 ruling.
Attorneys for the states that have passed new restrictions say the court should clarify the law governing abortions. In 1992, in its last sweeping abortion ruling, the high court said states may regulate the procedures so long as their rules do not put an “undue burden” on women seeking to end their pregnancies.
Another abortion battle
Final passage of another abortion bill in the N.C. legislature is expected Monday. It would require women to wait three days for an abortion, and abortion advocates say it would also limit the number of doctors who can perform the procedure. If the Senate approves the bill and compromises are worked out with the House, which passed its own version, it would then go to Gov. Pat McCrory. He has not said whether he’ll veto the legislation.