The short list for Justice Souter's retirement has been leaked-all of the candidates named favor upholding Roe v. Wade and five of the six on the list are women. That certainly bodes well for pro-choice advocates. "What I'm hoping is that what we do is Souter or better," said Janet Crepps, deputy director of the U.S. legal program for the Center for Reproductive Rights.

An important consideration related to who ultimately fills Souter's seat centers on what issues the Supreme Court would face in the near future.  RH Reality Check examined some of the cases being challenged in state or other appellate courts that might make their way to the Supreme Court over the next few years. It is, of course, nearly impossible to predict which cases will come before the Supreme Court. Thousands of cases are brought to the court each year and only a handful are heard.  Nonetheless, here we highlight some of the possibilities. 

Outright Abortion Bans and Fetal Personhood Amendments 

"It's hard to predict what might make its way up to the court," said Gretchen Borchelt, senior counsel at the National Women's Law Center.  "Certainly we know that the anti-choice side keeps trying to propose some flat-out unconstitutional ban on abortion that's directly challenging Roe and will be litigated in the courts." 

South Dakota, which defeated two outright abortion bans in 2006 and 2008, both of which would have directly challenged Roe, is one state where anti-choice activists have targeted their efforts in recent years. "But this year in the state legislatures we've seen a different attempt, which is [to] establish fetal personhood," Borchelt said.  

North Dakota battled over such legislation earlier this year. This type of legislation, drawing inspiration from a ballot initiative that was defeated in Colorado last fall, usually seeks to define a person as beginning as a fertilized egg.  The approach is problematic for a number of reasons. "There are bills that would not only ban abortion but would have far-reaching consequences and would get into other life decisions like birth control, they could trigger investigations into miscarriages, ban in vitro fertilization, all those things," Borchelt said. The bill was ultimately defeated in the state senate. 

"They're not giving up [such fetal personhood legislation]," she said. "We've seen that in a lot of state legislatures this session." Other states that introduced such legislation included Maryland, South Carolina, Montana, and Alabama. Though none of the states successfully managed to pass laws that would have defined so-called "fetal personhood" a national organization, Personhood USA, continues to put forth efforts to pass such legislation in the states.  According to their website, Personhood USA's goal is to introduce such legislation in every state. While it is unlikely that their efforts in states like Maryland, which has a Freedom of Choice Act in place, will succeed, they have been more successful in states like North Dakota. As Borchelt notes, such "personhood" legislation, if passed, would not only be a direct challenge to Roe v. Wade, but it would also force courts to rule on the constitutionality of birth control and in vitro fertilization, among other laws. 

Mandatory Ultrasound Viewing 

One state that is currently battling out abortion legislation in the courts is Oklahoma, where a law that places limits on abortion was passed last year, vetoed by the state's governor and then overridden by the legislature.   The law places restrictions on the administration of a medical abortion, requires women seeking an abortion to view an ultrasound, and places other restrictions on women's right to sue a provider if he or she intentionally withholds information about the pregnancy, particularly if the fetus has developmental defects. This kind of legislation seeks to push the boundaries in the Supreme Court's 1992 ruling in Planned Parenthood v. Casey, in which Souter and two other justices joined together to simultaneously preserve Roe v. Wade while opening the doors for states to place limits on the right to abortion, so long as the laws do not place an "undue burden" on the woman's ability to obtain an abortion. 

The Center for Reproductive Rights is currently challenging Okalahoma's law in state courts and the case is known as Nova Health Systems v. Brad Henry. There are two particularly objectionable components to the Oklahoma legislation, according to Crepps.  First, it requires doctors do a "follow up examination" on women receiving mifepristone (commonly known as RU-486) for medical abortion, despite the fact that no such examination is required either by federal regulation recommends or by sound medical practice.  The American College of Obstetricians and Gynecologists, for example, does not recommend such a protocol. Similar legislation was passed in Ohio in 2004 that is currently being challenged by Planned Parenthood. 

The law mandates ultrasounds for surgical abortions, requires that women undergoing abortion view the ultrasound, and requires physicians to describe the ultrasound to her out loud.  

"Forcing a doctor to say and forcing a woman to listen to an ultrasound description when neither of them are interested or think it's a good idea or necessary for informed consent is a violation of both their privacy rights but [also] of their free speech rights," Crepps said. 

Legislation asking women to view ultrasounds is increasingly common.  Today, half a dozen states, including South Carolina and Michigan, have milder versions of Okalahoma's ultrasound legislation. Kathleen Sebelius, in one of her last acts as governor of Kansas before being confirmed as secretary of the Department of Health and Human Services, signed a law that mandates offering women the option to view an ultrasound before undergoing an abortion.  But if Okalahoma's legislation is upheld in state court, other states might begin to copy it.  "Obviously anti-abortion people will be watching [the Okalahoma] case as well as the Ohio case and seeing if they can pursue that as a strategy," Crepps said. 

Because Okalahoma's law is being challenged in state courts, it is unlikely the Supreme Court will rule on it. But if the anti-choice community is successful in defending this law, copycat legislation in other states could present a challenge that could make its way eventually to the Supreme Court. 

Pharmacist Refusal Laws 

In the Ninth Circuit, pharmacists are challenging a law that ensures a woman's access to birth control, including emergency contraception (commonly known as "Plan B"), because they say it interferes with their religious rights. 

Because of the challenge, the court has issued a temporary injunction. That means pharmacists can still refuse to fill birth control prescriptions or sell emergency contraception to women until the court issues a ruling on the case.  

Such legislation touches on the midnight regulation in the Department of Health and Human Services that the Bush administration put into place.  If the rule is rescinded, as the Obama administration has pledged to do, then organizations that supported it may challenge the legislation all the way to the Supreme Court. 

Partial-Birth Abortion Ban 

Although the Supreme Court has already upheld the federal Partial-Birth Abortion Ban in their 2007 ruling on Gonzales v. Carhart, Virginia passed a similar ban that did not include a health exception in 2003. The law has been challenged by the Center for Reproductive rights in a case known as Richmond Medical Center v. Herring. An appellate court ruled last May that the Virginia ban placed an "undue burden" on a woman's right to obtain an abortion.  

If the Supreme Court decides to hear the case, the ruling on Virginia's ban could determine how courts interpret the federal partial-birth abortion ban. 

The battles that are currently taking place in state and appellate courts are important. These are the cases that could end up before the Supreme Court.  The next justice, whoever that might be, will be facing important decisions about how women access reproductive health care.  Perhaps Crepps is right and Obama will appoint and the Senate will confirm someone who is "Souter or better" on women's rights.