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A number of states have recently passed, or are about to pass, laws prohibiting abortion. As I understand it, they intend these laws to be contested, and eventually appealed to the Supreme Court, in the hopes that the current Court will overturn Roe v. Wade.

I heard part of a radio program last night, where the doctors on the panel repeatedly reminded listeners that these new laws don't really have any effect, and until and unless SCOTUS so rules, legality of abortion in the first two trimesters is still the law of the land.

But if abortion is still legal, how could there be a case that gets appealed? Doesn't someone have to be arrested under one of the new laws, and then the judgement in that case gets appealed? What prevents numerous people from being arrested during this period of confusion?

And even after SCOTUS rules, what prevents a state from continuing to enforce the statute, repeatedly appealing them?

Also, what could be the justification for appealing a ruling that the new law is unconstitutional, because of Roe v. Wade? A lower court is forced to uphold this precedent, right? The appelant would have to find some procedural reason why this ruling was incorrect, they can't appeal just because they don't like the ruling and think SCOTUS might agree with them, can they?

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Is abortion still legal in all 50 states?

Yes

But if abortion is still legal, how could there be a case that gets appealed?

By arresting someone who is involved in the allegedly illegal abortion and pressing charges. The case will be dismissed by the court of first instance as being contrary to Roe v. Wade. The State will appeal the dismissal. The appeal court will uphold the dismissal. The State will eventually request an appeal to the Supreme Court. Appeals to the Supreme Court are at the discretion of the Court (they hear them if they want to hear them) . If the choose not to hear it that's the end of the matter. If they choose to hear it then they will hear evidence and decide if they will uphould or overturn the precedent they set in Roe v. Wade.

Doesn't someone have to be arrested under one of the new laws, and then the judgement in that case gets appealed?

Yes

What prevents numerous people from being arrested during this period of confusion?

Politics.

Such draconian measures are likely to be counterproductive to the state's objectives. It is far more likely they will wait for a slam-dunk, open-and-shut case where a conviction on state law would be guaranteed but for Roe v Wade. They will then run that one as the test case.

And even after SCOTUS rules, what prevents a state from continuing to enforce the statute, repeatedly appealing them?

Arrest by the FBI.

A person who knowingly and repeatedly flaunts the authority of the Supreme Court will soon find themselves facing a Federal warrant for contempt.

Also, what could be the justification for appealing a ruling that the new law is unconstitutional, because of Roe v. Wade?

The state will argue that Roe v Wade was wrongly determined - that the court in 1973 misunderstood or misapplied the Constitution.

There are certainly arguments that could be made on that basis and most of them are contained in the dissenting judgement - the case was decided 7-2.

A lower court is forced to uphold this precedent, right?

Yes

The appelant [sic] would have to find some procedural reason why this ruling was incorrect, they can't appeal just because they don't like the ruling and think SCOTUS might agree with them, can they?

Appeals are made for an error of law. These are often procedural but they can also be an argument that a particular decision was wrong because the court that set the precedent got the law wrong. So yes, they can appeal based on the argument that SCOTUS in 1972 was wrong about Roee v Wade and that SCOTUS in 2019 (or, more realistically, 2021-23) will agree with their interpretation of the law.

  • Perhaps this should be another question, but would the accused in this test case be at risk of prison if the SCOTUS rules the law to be constitutional? – Paul Johnson May 23 at 14:47
  • @PaulJohnson if that's what the law that is ruled constitutional states. In Wilkerson v. Utah firing squad was ruled constitutional, where Wallace Wilkerson was shot afterward. If you are charged for breaking a law and you challenge the constitutionality of that law but lose you're still going to have to face the consequences of breaking whatever law it was. – User37849012643 Sep 23 at 14:53
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But if abortion is still legal, how could there be a case that gets appealed?

This could be done by arresting someone who would be in violation of the new law if it were upheld, much as described in the answer by Dale M. If the State were to initiate a case, this would be the way. Or instead of arresting a person, the state could levy a fine, if the new law provides for that. The procedure would be the much the same.

If an anti-abortion law provides for an injunction to close a facility offering abortions (as I understand some proposed laws do), the State couldm proceed by obtaining or attempting to obtain such an injunction. If denied because of Roe v Wade that denial could be appealed.

However, if someone opposed to the law wants to challenge it, expecting it to be overturned, that person (or group) could file for an injunction against enforcement of the law, or for a declaratory judgement that the law was invalid. That is the procedure by which most previous (post-Roe v Wade) would-be abortion laws have been challenged. Such a challenger must have, I understand, a "credible fear" that the law would mbe enforced against him or her, such that they are constrained in their otherwise lawful activities by such potential enforcement. If under the circumstances the law cannot be or is quite unlikely to be enforced against the challenger, that person will not have standing to bring the case.

Doesn't someone have to be arrested under one of the new laws, and then the judgement in that case gets appealed?

No. It could be done that way, and might well be. But the state could levy a fine without arresting anyone, or obtain an injunction closing a facility. Any of these would lead to a test case, where the issues would be essentially the same.The lawyers for the state might think it would be easier to get the US Supreme Court to overturn Roe if it doesn't involve sending a doctor who was following the law as it existed previously to prison. If they think that, they might well be correct.

A lower court is forced to uphold this precedent, right?

Yes and No.

A lower court cannot overrule a Supreme Court decision. But it can sometimes find some grounds on which the current case is different from the previous case, the one being urged as precedent. Then it could rule that the differences were sufficient that the precedent did not apply. I think that would be hard to do with Roe v Wade, because it has been upheld and extended a number of times, in several different factual settings.

Also, a lower court will sometimes say that other decisions have so changed the underlying rule that the case urged as precedent is no longer good law, that it has been in effect overruled implicitly.

In either case such a decision by a lower court would be likely to be appealed, and might well reach the Supreme Court just as if the ruling had been the other way.

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