Reproductive rights in the balance
The Supreme Court steps back into the abortion minefield
ON WEDNESDAY, the Supreme Court will take up the biggest reproductive-rights case it has considered in over 20 years. Roe v Wade, the 1973 ruling that established a constitutional right to abortion before fetal viability, is not in question. Neither is Casey v Planned Parenthood, a 1992 decision extending Roe but permitting states to discourage abortion through certain regulations. The issue in Whole Woman’s Health v Hellerstedt is how to apply the standard articulated in Casey which says that states may not impose an “undue burden” on a woman’s right to choose. With Justice Antonin Scalia’s seat now empty, there is no chance of a decision sharply curtailing abortion access nationwide. But the Court’s remaining eight justices may still deal a blow to abortion rights by permitting onerous regulations to take effect in a number of states.Whole Woman’s Health involves House Bill 2, a Texas law adopted three years ago that requires abortion clinics to meet the rigorous standard of “ambulatory surgery centres” (ASCs) and mandates that abortion providers have admitting privileges at a nearby hospital. The stated purpose of the law is to “raise the standard of care for all abortion patients” and “improve the health and safety of women”. But the legislature’s real aim, the challengers say, is to set up new roadblocks for Texas women seeking an abortion. Whole Woman’s Health, the clinic suing the state, argues that the law “drastically reduce[s] the number and geographic distribution of abortion facilities in Texas”, whittling down the number of clinics to nine (from more than 40) and leaving vast swathes of the state (in the Rio Grande Valley in the south and the El Paso area in the west) without a single facility.
A federal judge in Austin, Lee Yeakel, agreed with the challengers in 2014. He ruled that House Bill 2 “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v Wade”. But 10 months later, in June of last year, the conservative appeals court with jurisdiction over Texas, the 5th circuit court, reversed Judge Yeakel’s decision. Judges should defer to lawmakers, the panel wrote: “medical uncertainty underlying a statute is for resolution by legislatures, not the courts”. The Texas law does not impose an undue burden on abortion rights because neither “its purpose [nor its] effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
There is ample reason to think that the 5th circuit erred in applying the admittedly hazy “undue burden” standard. Advocates of the Texas bill did not hide their true intentions when celebrating is passage. Nor did David Dewhurst, the lieutenant governor. When the Senate passed the bill in 2013, Mr Dewhurst sent out a triumphant tweet with a map showing which abortion clinics would be forced to close, along with this note: “We fought to pass S.B. 5 thru the Senate last night, & this is why!” For the late Justice Scalia, who regularly chastised his colleagues for trying to glean legislative intent from extralegal sources, the black letter of the law was all that matters. The hermeneutics of committee hearing reports and floor debates—and tweets, for that matter—should, according to Justice Scalia’s textualism, play no role in determining what a law means. Scott Keller, the young Texas solicitor general who is arguing in favour of House Bill 2, will miss Justice Scalia’s perspective on Wednesday morning. It is likely that Clarence Thomas, the justice most closely aligned with Mr Scalia, will pipe up during oral argument after breaking his decade-long silence on Monday.
But Mr Keller will be directing the bulk of his plea to Anthony Kennedy, for whom he served as a clerk six years ago. (In both cases Mr Keller argued before the justices last year, his old boss voted against his side.) If Justice Kennedy again jilts his former clerk and sides with the court’s four liberal justices, the 5-3 result would invalidate not only Texas's abortion regulations but similar laws forcing clinics to shut down in Louisiana and Mississippi; it would prevent other states from attempting to pass such laws as well. But if Justice Kennedy votes with the conservatives, as he has all but once in adjudicating 21 abortion restrictions over the decades, as David S. Cohen points out, the 4-4 result will leave the 5th circuit ruling alone and southern states will have a free hand to drastically reduce the number of clinics within their borders. But since it take a majority of justices to overrule a lower court decision and create a new binding precedent, a tie will permit other federal courts to come to other conclusions.
The range of possible outcomes in Whole Woman’s Health—and the distinct possibility of a confusing patchwork of abortion rights emerging from region to region—highlights the uncertainties involved in an indefinite stretch of an eight-member Supreme Court bench. While a 4-4 ruling would serve as a setback to the abortion-rights movement, it would fuel the Democrats' argument that Republican senators are derelict for refusing to consider any nominee to the Supreme Court before a new president enters the White House in 2017. That would make a splendid campaign issue for the Democratic presidential nominee in the summer and autumn.