For decades, the abortion rights movement has been engrossed in a game of legal trickery, repelling thousands of bans and restrictions on procedure that appear in states after states. But the main blow in these battles is the precedent of 1973 Caviar guaranteeing the right to an abortion to the viability of the fetus – is likely to disappear within a few weeks if the Supreme Court makes a final decision. And if that happens, it could instantly change the paradigm: the same people who play legal advocacy for abortion rights will now seek offensive maneuvers to challenge state laws against abortion.

For its part, the Biden administration has said it plans to wait for this final decision before publishing any executive action to protect access to abortion, forcing reproductive rights groups and their lawyers to quickly monitor their own aftermath.Caviar game plans for filing a lawsuit against the abortion ban without exception for rape or incest that many states plan to impose.

They are being made to think more “about what unique, new arguments can be made,” said Greer Donley, a law professor at the University of Pittsburgh who recently was a co-author of the work in the Columbia Law Review about the legal battles ahead.

Some abortion rights groups, for example, have already sued cities that have passed abortion bans and announced the “cause cities” themselves for the unborn. Others are preparing for legal skirmishes with states trying to ban travel across state lines for this procedure.

And while protecting abortion rights in the past has mostly included constitutional issues based on Caviar and the provision of equal protection, a new reality means mastering those areas of law that many reproductive rights groups may have never studied before.

«The problem with the future era is that protecting abortion rights for so long has meant being an expert on things like proper due process and the 14th Amendment, ”Donley said. “But what is happening will require everything: knowledge of FDA law and other health care statutes, knowledge of criminal law, because people will be arrested for abortion, laws around the U.S. Postal Service, because people are sending pills to terminate pregnancies,” questions about the use of federal land, jurisdiction for interstate conflicts – so much.

State constitutions could also help tighten protection requirements against abortion, several groups told POLITICO. While some states explicitly recognize the right to abortion in their constitutions, others have more vague wording about privacy, gender equality, and other issues that attorneys hope will allow them to effectively challenge future abortion bans and restrictions.

The Center for Reproductive Rights, for example, recently filed a lawsuit seeking to block the almost complete abortion ban in Oklahoma based on the language of the state constitution on the right to due process.

“Many people don’t realize that the federal constitution has always been the floor, not the ceiling. State constitutions can and often do provide greater protection for their citizens, ”Colby-Malinas said. “They were often at the forefront. So it’s certainly a way to explore. “

Lawyers are also studying tactics long used by the anti-abortion side – freedom of religion – as a tool to combat state bans on abortion. In particular, they are seeking the mobilization of Jewish plaintiffs, whose religion allows abortion and even requires it in certain circumstances, such as threatening the life of the mother.

“The Supreme Court has never ruled on the application of the free exercise of the first amendment to the right of access to abortion services,” said Nancy Northup, president and director general of the Center for Reproductive Rights. “And there are religions that support the right to abortion, and so the claim to free exercise is absolutely on the table.”

The free exercise clause prohibits states from passing laws that make it significantly more difficult for people to practice their religious beliefs. Leila Abolfazli, director of the Federal Department of Reproductive Rights at the National Center for Women’s Law, said such lawsuits filed by Jewish plaintiffs could be “a profound moment for a country that for nearly 49 years has spoken only about abortions in negative terms.”

“Such cases really help people understand that this is not a black and white problem,” she said. “People come to this with incredible passion, and some with incredible religious beliefs that drive them, and that’s an important part that the other side has tried to dominate.”

Legal and activist groups are also pushing for the Biden administration to pursue federal regulation that could pose these challenges to success. One option is to force the FDA to waive the remaining restrictions on abortion pills and set out recommendations that prohibit states from banning or restricting their distribution.

Although in the US the pill is only allowed to be used during the first 10 weeks of pregnancy, proponents argue that it would be better than nothing.

The Department of Justice or other legal groups, Donley and her co-authors say, could also sue health professionals who report abortions to law enforcement for violating HIPAA’s privacy laws. They can also file charges against hospitals that refuse to perform medically necessary abortions for going against Emergency Medical Care and Labor Act.

But with the uncertainty of major federal action, the group is also weighing how to bring the struggle to the highest possible local level.

The ACLU and Democracy Forward merged earlier this month sue Lebanon, Ohio – a population of just over 20,000 – for declaring itself an abortion-free zone and threatening to prosecute anyone who helps an abortion seeker, even a procedure outside the city.

Their plaintiff was a regular – a branch of the National Association of Social Workers of Ohio. Because social workers can advise clients on pregnancy options and resources, the group argues that its members may be prosecuted for “just doing their job”.

“The fate of the Supreme Court will be determined Rowe vs. Wade and after nearly fifty years of settling a precedent on the right to privacy, this lawsuit clearly shows that, regardless of the outcome, the Lebanese decree violates other constitutional safeguards, including due process and freedom of expression, ”they wrote.

However, all participants acknowledged that the legal system has its limitations – especially due to the current composition of the federal judiciary. Pre-trial trials say 2022 wins, executive action, and federal and state law will be needed if Democratic and abortion-independent voters want to see a return. Caviar protection.

https://www.politico.com/news/2022/05/16/abortion-rights-advocates-legal-playbook-roe-00032690

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