This lawsuit shows abortion foes’ newest tactic in the Kavanaugh era

Catholics for Life is suing Rhode Island for codifying Roe v. Wade.

This lawsuit shows abortion foes' newest tactic in the Kavanaugh era
Protesters on both sides of the abortion issue gather in front of the U.S. Supreme Court building during the Right To Life March, on January 18, 2019 in Washington, DC. (Photo credit: Mark Wilson/Getty Images)

After seeing states like Alabama and Georgia pass near-total abortion bans aimed at overturning Roe v. Wade, Rhode Island enacted a law to protect the constitutional right to abortion. Now, anti-choice activists are suing the state.

This is a new tactic, which makes clear that abortion foes will not be satisfied if Roe v. Wade is simply overturned, but when the medical procedure is outlawed in every state.

Rhode Island Gov. Gina Raimondo (D) signed the Reproductive Privacy Act into law last week. The law prohibits the state from interfering with a patient’s right to abortion before viability and in limited circumstances thereafter; repeals the requirement that providers notify the husband of the abortion-seeker; and eliminates the ban on a type of abortion procedure.

Catholics for Life and several other abortion opponents want the Rhode Island Supreme Court to declare the law unconstitutional, and filed a lawsuit this week in a state superior court.


The lawsuit argues Rhode Island violated the state and U.S. constitutions because the legislature went outside its powers to codify Roe. The lawsuit is consistent with the anti-abortion movement’s thinking, using personhood language — one plaintiff is “Baby Roe” — to make its case.

The plaintiffs will likely have a hard time succeeding in court, having already lost a temporary restraining order to block the enactment of the bill in question. But it’s still a notable change in the anti-abortion movement’s tactics.

Anti-abortion organizations usually aren’t the ones filing lawsuits. Historically the reverse has been true: reproductive rights organizations sue states for passing anti-abortion laws, arguing they violate Supreme Court precedents.

Organizations like Americans United for Life (AUL) penned and propagated model anti-choice legislation, making it a lot easier for state lawmakers with similar views to swiftly pass restrictions. The latest round of bans are intended to be challenged, because abortion opponents believe a conservative Supreme Court — thanks to President Donald Trump’s appointees, Justices Brett Kavanaugh and Neil Gorsuch — will use them to overturn abortion precedents. 

Recently, reproductive rights advocates changed their approach; they began to mirror their opponent’s strategy and pass model legislation. Over 140 abortion-rights bills have been introduced in 28 states this legislative session and eight have passed, according to the Center for Public Integrity.


The lawsuit against the Rhode Island law is the first to challenge one of these proactive measures. While abortion opponents have had mixed success with their own lawsuits, supporters do not appear concerned about the Rhode Island lawsuit prevailing in court.

“Reading the complaint, it fails to assert any legitimate state or federal constitutional grounds for overturning the Rhode Island law. The arguments are, in my opinion, entirely frivolous,” said Bernie Horn, senior director for policy and communications at the Public Leadership Institute. The district-based group is leading the reproductive rights counterattack, developing a playbook with 29 model bills.

“As a lawyer, this suit does not make me worry about anti-abortion groups making similar claims in other states,” Horn added.

Some even view the lawsuit as a sign of recent successes.

“They haven’t had to file lawsuits like this before because abortion rights have been playing defense for so long,” said Jessica Arons, senior advocacy and policy counsel for reproductive freedom at the American Civil Liberties Union (ACLU). “We started going on offense and we are started to rack up some wins and now they’re the ones going to court, trying to stop it as opposed to us.”

It’s not clear that everyone in the anti-abortion movement is in agreement with the latest tactic. The movement didn’t even agree on the merit of pushing near-total bans, as some much preferred laws that incrementally chip away at abortion access. Rhode Island Right to Life, an influential group within the state, did not respond for comment. Neither did its parent organization, National Right to Life, whose general counsel said so-called heartbeat bans were “counterproductive,” though the organization has also said they don’t oppose these bills.

AUL, whose senior counsel favors the incremental approach, called the Rhode Island law “an extreme law that expands abortion far beyond Roe v. Wade,” in a statement to ThinkProgress, but did not comment on the complaint or Catholic For Life’s legal strategy.


It’s not an accident this is all playing out in Rhode Island, said Mary Ziegler, who studies abortion law at Florida State University. Even though the legislature is controlled by Democrats, many within the party are anti-abortion; some prescribe their views to Catholicism. Anti-abortion Democrats used to regularly block bills that expanded abortion access, and nearly defeated the Reproductive Privacy Act this legislative cycle.

“There are tools in the state constitution that abortion opponents are trying to use that necessarily won’t be available elsewhere. But they are trying to do more than that too,” Ziegler told ThinkProgress.

“Why are they doing this? One, because it’s yet another vehicle for challenging Roe and Casey [v. Planned Parenthood]. Two, because they probably feel otherwise you are going to have very blue states that are going to be not just having liberal abortion policies for their own citizens but [will be] magnets for women from neighboring states,” she added.

Ziegler wouldn’t be surprised if groups challenge proactive laws like New York or Maine’s — abortion foes don’t have much to lose. Given there are multiple chances for the Supreme Court to overturn Roe, everyone is preparing.