The battle over abortion rights: Here's what's at stake in 2020

Key Points
  • Changes at the state and federal level made 2019 a volatile year for abortion access.
  • But, for activists, the fight is just heating up. Reproductive rights experts anticipate the abortion landscape to change even more dramatically in the year ahead, thanks to an onslaught of expected court rulings and new laws.
  • On the radar for 2020 is a major case that will be reviewed by the Supreme Court, 2020 perspectives on the Hyde Amendment and the prospect of more state abortion bans.
Abortionrights activist gathered outside the U.S. Supreme Court to protest against the recent abortion laws passed across the country in recent weeks. Tuesday, May 21, 2019. Washington, D.C. (Photo by Aurora Samperio/NurPhoto via Getty Images)
Aurora Samperio | NurPhoto | Getty Images

Changes at the state and federal level made 2019 a volatile year for abortion access.

But for activists, the fight is just heating up. Reproductive rights experts anticipate the abortion landscape to change even more dramatically in the year ahead, thanks to an onslaught of expected court rulings and new laws.

Many of the battles in the coming year stem from policies implemented and struck down in prior years.

Republican-led states, emboldened by the Supreme Court's new conservative majority and the Trump administration's anti-abortion policies, passed 59 abortion restrictions in 2019.

Among those restrictions was a wave of state-led abortion bans that were temporarily blocked from going into effect last year.

The Trump administration in February instituted the "gag rule," which bars the use of Title X money "to perform, promote, refer for, or support abortion as a method of family planning." Title X helps fund birth control and reproductive health care for low-income individuals, according to Planned Parenthood.

Experts, citing these factors, expect the new year to continue to be challenging for abortion rights.

Here are the major events in 2020 that could bring drastic change to abortion policy:

Louisiana abortion case hits the Supreme Court

In March, the Supreme Court will take up its first major case relating to abortion with both of President Donald Trump's appointees, Justices Neil Gorsuch and Brett Kavanaugh, on the bench.

The high court will review a controversial Louisiana law from 2014 that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the facility where the abortions are provided. Opponents said it would effectively limit the state of about 4.5 million to one abortion provider.

The court struck down a nearly identical Texas law in the 2016 case Whole Woman's Health v. Hellerstedt.

Diana Kasdan, director of judicial strategy at the Center for Reproductive Rights, an activist group that brought the Louisiana case, warned that the court could use the case to "effectively ban abortion" even if it doesn't overrule its longstanding abortion precedents, known as Roe v. Wade and Planned Parenthood v. Casey.

"If this law were to be upheld, without overruling Roe v. Wade, without overruling Casey, a state like Louisiana could effectively ban abortion because they're going to be down to one clinic," Kasdan said.

Opponents are also worried that the ruling could have broader implications for abortion rights, arguing it might undermine the "undue burden" standard applied by the Supreme Court to determine whether laws restricting abortion are constitutional.

This case involves a potential regulation that's "measured against" that standard, said Eric Scheidler, executive director of Pro-Life Action League. "Here in this case, the court has the opportunity to further define that undue burden, maybe even overturn the Hellerstedt case," he said.

2020 candidates on the Hyde Amendment

Experts on both sides are going to pay attention to 2020 Democratic candidates and their stance on the Hyde Amendment, which bars federal funding for abortions except in cases of rape or incest or when the life of the person giving birth is at risk.

Opponents of the Hyde Amendment are reproductive rights groups seeking its repeal, arguing that women of color make up more than half of the population enrolled in Medicaid that's subject to abortion coverage restrictions.

"Restrictions on abortion coverage disproportionately hurt low-income people, especially women of color, immigrant women, and young women, meanwhile anti-choice lawmakers continue to wage unprecedented attacks on reproductive freedom on all fronts," said Amanda Thayer, deputy national communications director at nonprofit NARAL Pro-Choice America.

"The moment we're in shows how support for reproductive freedom, including repealing the Hyde Amendment, is no longer negotiable, and all the Democratic presidential front-runners understand that — something unthinkable a few years ago," Thayer said.

Most of the Democratic candidates indicated they support the repeal of the Hyde Amendment, but haven't specified whether they'd sign a budget that included the Hyde Amendment. Lawmakers since it was passed in 1977 have voted for the Hyde Amendment every year as part of a larger spending bill.

Former Vice President Joe Biden said he supports its repeal, after having been the subject of criticism for flip-flopping on the matter in June. The Democratic front-runner has shifted his stance multiple times since announcing his candidacy for president.

Scheidler from the Pro-Life Action League said he "wouldn't be surprised to see [Biden] flip again if he wins the nomination, when he realizes that most Americans, even those who support legal abortion, don't believe in forcing Americans to pay for it."

Ruth Bader Ginsburg on the Supreme Court

Justice Ruth Bader Ginsburg has scared liberals with a flurry of recent health concerns.

The 86-year-old sat out of Supreme Court arguments in November due to a stomach bug.

Last year, Ginsburg underwent treatment for what likely was pancreatic cancer, according to a statement from the Supreme Court. In late 2018, she was treated for cancerous growths on her lungs.

Ginsburg is the oldest justice and is considered the leader of the Supreme Court's liberal wing, which is outnumbered by conservatives 5-4. She was appointed by President Bill Clinton in 1993.

With the addition of Kavanaugh and Gorsuch, the Trump administration is believed to have shifted the Supreme Court's balance on the topic of abortion to favor conservative policies. Previously, Justice Anthony Kennedy, a moderate Republican appointee, had been the deciding vote on several issues that were split on an ideological vote.

"We suspect Brett Kavanaugh is going to have an anti-choice streak," said Destiny Lopez, co-director of All* Above All, a coalition that unites organizations to build support for lifting abortion coverage restrictions. "We knew with Gorsuch that this was a problem. So there's concern that this could be a further erosion of Roe v. Wade."

More states might adopt abortion bans

A second wave of state-led abortion bans is expected in 2020, with Tennessee, Nebraska, Ohio, South Carolina and Idaho leading the charge.

"I think we're going to continue to see states try to further erode Roe v. Wade at the state level," Lopez said. "And I think [states] feel emboldened after the last round of abortion regulations in the last year."

Republicans in Ohio have proposed a highly restrictive bill that prohibits doctors from performing abortions in almost all circumstances, except if a person giving birth will die from complications.

The bill does not propose any exceptions for rape or incest, but it does say that those who receive abortions and doctors who perform them can be prosecuted for murder.

"The time for regulating evil and compromise is over," said Ohio state Rep. Candice Keller, a Republican and a sponsor of the bill. "The time has come to abolish abortion in its entirety and recognize that each individual has the inviolable and inalienable right to life."

The bill is similar to a controversial law struck down in Alabama last year, in which there were also few exceptions for doctors to carry out abortions.

But, Lopez said, it's important to also recognize that there are states going in the opposite direction. While multiple states tightened the restrictions on abortion, other states, like New York, Virginia and Maine, expanded abortion access.

In January 2019, New York Gov. Andrew Cuomo passed the Reproductive Health Act, a law that allows people to receive an abortion after the 24th week of pregnancy in cases where the health of the person giving birth is on the line or if the baby would not survive the birth. Previously, the New York law only allowed an abortion after 24 weeks if the person giving birth would not survive.

— CNBC's Tucker Higgins contributed to this report.