Roberts Law Group, PLLC
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The coming crossroads for abortion rights in the United States

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A matter of longstanding debate, abortion is back in the news - and it's more divisive than ever. Now that two Trump appointees sit on our nation's highest court, anti-abortion activists (or pro-life, depending on how you look at it) are making a play to get the landmark 1973 decision of Roe v. Wade and its progeny overturned.

A wave of abortion-related legislation is sweeping the country. Red states are taking strong stances, some passing laws that amount to near-total bans on abortion. Meanwhile, blue states are moving to secure abortion rights in their constitutions, shielding them in case Roe gets overturned.

How some conservative states are making a provocative play

So far, several states have passed anti-abortion legislation, and several more are actively working to do so. Most involve "heartbeat legislation." This type of law bans the procedure after a heartbeat can be detected. Ultrasounds usually pick up heart activity at around six weeks of gestation - which is a mere two weeks after most pregnancy tests read positive. At this early embryonic stage, many women don't even realize they're pregnant. As a result, heartbeat laws amount to a near-total prohibition on abortion.

Alabama's legislature spurred uproar by passing the most restrictive ban in the country, stripping out exceptions for rape and incest and making it a felony offense (punishable by up to 99 years in prison) for medical professionals to perform illegal abortions.

Why these laws likely won't go into effect - yet

For now, Roe v. Wade and its successor decision, Planned Parenthood v. Casey, are still good law. Under Casey, women have a constitutional right to terminate pregnancy before fetal viability (the gestational age at which fetuses can survive outside the womb, around 24 weeks). States can't pass any legislation that would unduly burden the right to an abortion before viability.

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Unquestionably, "heartbeat legislation" does place an undue burden on that right. These laws virtually eliminate the right to an abortion in nearly all cases after six weeks of gestation.

Opponents are turning to the courts to block these laws from going into effect. And so far, they've been successful in doing so. The big question, however, is how successful they'll be if the Supreme Court decides to tackle the issue.

The court process is slow, and the Supreme Court often waits until a dispute is fully fleshed out in the lower courts - for example, when there's a "circuit split" in the federal courts of appeal - to take it on. It's doubtful the issue will be resolved before the 2020 election.

Still, there's no doubt abortion will remain a hot-button issue for the foreseeable future.

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