IFLG First Challenge to Roe v Wade Hits 63 Conservative Majority Supreme Court Rich Vaughn

First Challenge to Roe v. Wade Hits 6-3 Conservative Majority Supreme Court

The U.S. Supreme Court announced May 17 that it will hear the case challenging a Mississippi abortion law that, if upheld, would effectively overturn Roe v. Wade.

The Mississippi law, which was overruled by lower federal courts based on Supreme Court precedent, would ban abortions in the state after 15 weeks, well before the 24 to 28 weeks medical professionals say a fetus can survive outside the womb, The New York Times reports. The new law includes narrow exceptions for medical emergencies—or “severe fetal abnormality,” none for rape or incest. Jackson Women’s Health Organization, a state-licensed abortion provider, sued immediately, and two lower courts have ruled the law unconstitutional.

With the U.S. Supreme Court’s decision to hear the case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392—reportedly “after considering it more than a dozen times at the justices’ private conferences,” —it becomes the first of a barrage of state laws designed to challenge Roe v. Wade before the court’s new 6-3 conservative majority to hit its mark.

“Alarm bells are ringing loudly about the threat to reproductive rights,” Nancy Northup, the president of the Center for Reproductive Rights, said in statement cited by The New York Times. “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”

As we wrote this spring, the appointment of three conservative justices to the U.S. Supreme Court during Donald Trump’s one-term administration shifted the Court’s ideological balance, creating a 6-3 conservative majority and emboldening right-wing lawmakers and anti-choice activists to challenge Roe. As of our March 2021 report, 60 state bills restricting abortion had passed and were awaiting legal challenges.

Conservative Attack on Roe v. Wade

The Republican-controlled Mississippi legislature passed, and its Republican governor signed the Gestational Age Act into law in 2018. In his decision blocking the law from taking effect, Judge Carlton W. Reeves of the Mississippi Federal Southern District Court wrote, “The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade. This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”

The Mississippi abortion ban that will be heard by the Court is only the tip of the iceberg. As I was preparing to publish this article, Republican Texas Governor Greg Abbott signed into law a so-called “fetal heartbeat bill,” banning abortion in the state once a fetal heartbeat can be detected—long before many women even realize they are pregnant. The bill, which takes effect in September 2021, makes no exceptions for rape or incest but contains a particularly onerous provision allowing private citizens—even if they don’t live in the state of Texas—to sue anyone or any organization they believe may have helped a pregnant woman obtain an abortion. “Reproductive rights advocates warn it can be used to target abortion providers and abortion-rights activists,” NPR reports.

Republican Lawmakers Line Up State Abortion Bans for Supreme Court Challenge

The Texas legislature has become known for testing new and different types of restrictive abortion laws. Previously the state banned abortion after 20 weeks, but during the pandemic it banned nearly all abortions, disingenuously justifying the move as a way of preserving medical resources during the emergency.

Earlier we reported on a fetal heartbeat bill enacted by South Carolina in February 2021 that would allow federal prosecution of physicians who provide an abortion. The bill also requires women to undergo an invasive, vaginal ultrasound and requires physicians to report cases of rape or incest to law enforcement. Lawmakers positioned the bill as “moderate” because, while it is virtually a total abortion ban, it does include exceptions for pregnancies caused by rape or incest.

We also wrote about Arkansas, where in March 2021, state lawmakers and a Republican governor enacted an absolute ban on abortions for any reason—including rape or incest—except to save the life of the mother. Lawmakers passed the law with the express purpose of challenging Roe v. Wade, joining 14 other states that have passed similar bans in 2021.

The effort is almost redundant. Two years ago, Arkansas enacted a total abortion ban in the event Roe v. Wade were overturned, one of 10 states with such so-called “trigger laws,” according to The New York Times. In 2019, Arkansas lawmakers passed a bill that would ban abortions in the state after 18 weeks; that law remains tied up with legal challenges.

Mississippi Abortion Ban Hinges on Fetal Viability

While the abortion bans differ from state to state in the details, what many have in common is a denial of the “viability” principle established by Roe that a woman has a right to choose an abortion up until the time when the fetus she is carrying could survive outside of the womb.

That is exactly what the Supreme Court, in its statement accepting the Mississippi case, has said it wants to examine. “When it agreed to review the case, the Supreme Court said it would address a single question: ‘whether all pre-viability prohibitions on elective abortions are unconstitutional,” The Wall Street Journal reports. In other words, with a single ruling, anticipated in spring or early summer 2022, the Court could either render all state laws that ban abortions prior to fetal viability unconstitutional… or uphold all of them.

While the Court’s newly conservative majority, packed with appointees President Trump chose for their purported willingness to overturn Roe v. Wade, strikes despair in the heart of defenders of reproductive rights, veteran Court watchers will tell you nothing is certain. Supreme Court justices, appointed for life, often vote differently than the presidents who nominated them expected them to.

Chief Justice John Roberts offers such one example of judicial independence. Although he was appointed in 2005 by Republican President George W. Bush, Roberts turned out to be a staunch defender of Supreme Court neutrality as the swing vote in a 4-4 liberal-conservative split. In 2019 he voted with the majority in a 5-4 ruling preventing the U.S. Department of Homeland Security from ending DACA, the Deferred Action for Childhood Arrivals program. In June 2020, joined by Trump-nominated Justice Neil Gorsuch—another surprise—Roberts voted with the 6-3 majority in ruling that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex, as reported by NPR

And also in June 2020, Roberts joined the then 4-member liberal to strike down a Louisiana physician hospital residency law that would have effectively shut down every abortion provider in the state except one, out of respect for Court precedent, he said.

Those Roberts swing votes were made on a much different Court. With the appointment of Trump nominee Amy Coney Barrett just days before the 2020 presidential election, the balance on the Court shifted to the right, and Roberts is now one of a 6-justice conservative majority. His one swing vote will no longer be enough to preserve precedent, should he be so inclined.

‘Fortress of Public Opinion’ Impacts U.S. Supreme Court Decisions

But the battle is not over yet. The American political and social landscape is in a state of change as our country struggles to recover and recoup from a global pandemic, an economic catastrophe, and ongoing threats to our democratic form of government.

As David Drehle wrote this week in an opinion piece for The Washington Post, Supreme Court justices do not operate in a vacuum. Jurist Charles Evans Hughes wrote in 1928 about the “fortress in public opinion” that gives justices cover for their opinions. Making his own point, following the landslide re-election of President Franklin D. Roosevelt, in 1937 the Court majority under Chief Justice Hughes flipped from opposing Roosevelt’s New Deal to supporting it.

But the Supreme Court justices today enjoy no such public mandate, Drehle continues: “…no landslide enabled President Donald Trump to shift the balance of the court by appointing three robust conservatives.” Rather, Trump lost the popular vote to Hillary Clinton in 2016. “The Senate Republicans who confirmed those justices represented fewer Americans than did Democrats who were opposed,” Drehle writes.

Indeed, President Joe Biden has faced pressure from liberal activists to expand the size of the Supreme Court as a defense against the conservative “court packing” of the past several years. So far, he has resisted, instead appointing a commission, balanced with conservative and liberal voices, to study the matter. Democratic lawmakers have advanced a proposal to expand the Court from nine to 13 justices, corresponding to the 13 federal judicial districts.

Challenges such as the Mississippi abortion law, which threaten women’s reproductive rights and personal autonomy, as well as the fight over how to address the country’s epidemic of gun violence or the argument over immigration policy, all work to inflame public opinion. The Court is not expected to begin hearing the Mississippi case until fall, with no decision expected until mid-2022. Lots can happen, and no doubt will, between now and then. If anything, the rate at which public opinion changes is accelerating.

As Drehle writes, “Public opinion on abortion isn’t a fortress—it’s a battlefield.” We may feel helpless to do anything about the political forces that engineered the Supreme Court’s conservative turn. But all of us can play a role in constructing a “fortress of public opinion” that will cause justices—even those appointed under the flag of far-right politics—to think hard before taking the Court on a path that conflicts with the beliefs and democratic ideals of a majority of Americans.

Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Katie Deaquino
KATIE DEAQUINO
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Alexander Espinoza
ALEXANDER ESPINOZA
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Toni Hughes
TONI BOONE
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

KIM DEVEREAUX
Paralegal

Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler
PHOEBE S. SADLER
Associate

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan
RUBINA ASLANYAN
Paralegal

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Cara Stecker
CARA STECKER
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble
STEPHANIE KIMBLE
Paralegal

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
TRISH PITTMAN
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Elsa Jimenez
ELSA JIMENEZ
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.