It happened quietly, flying under the radar in the face of crisis-driven federal governance and partisan squabbling. Over the course of a decade, conservatives have, for the most part, expanded their hold on state government in traditionally red states while making substantial gains in traditionally blue and purple states. The results have been dismal on a number of issues (see: misguided welfare policies, the utter gutting of school resources, etc.), but things have been especially terrifying in the realm of women’s reproductive healthcare.
Recent announcements from the Supreme Court, however, may offer some hope to those appalled by state legislatures hell bent on setting us back a century. In the coming session, they’ll be hearing two specific cases relevant to reproductive rights. One, as we previously covered, is utterly asinine. Another, however, could have repercussions that impact generations to come. Welcome to Whole Woman’s Health v. Cole.
You have questions. That’s understandable — this case and all of its variables and possible outcomes and potential implications is incredibly complex. Luckily, we have answers. Let’s break it down.
What’s the backstory?
Back in June of 2013, despite the valiant filibustering efforts of Wendy Davis, the state of Texas passed legislation to reduce by half the 40 abortion facilities in the state. The requirements imposed — such as requiring clinics to meet the standards of “ambulatory surgical standards” and requiring abortion providers to have admission privileges at a nearby hospital — were roundly dismissed by medical experts and organizations like the American Medical Association, the American College of Obstetricians and Gynecologists, and others as utterly unnecessary, politically driven, and likely to decimate women’s access to reproductive healthcare.
Should the law be fully implemented, there will be a mere nine abortion clinics left with none west of San Antonio in a state with 5.4 million women of reproductive age. Earlier this year, the Supreme Court temporarily blocked the implementation of the law, with Justices recently agreeing to hear the case.
What are the issues in question?
The Court will likely have to evaluate three central questions in adjudicating this case.
The first is whether the new regulations in Texas places an undue burden on women seeking an abortion. The plaintiffs argue that the resulting depletion of available abortion resources makes it exceedingly difficult for women to execute this right. The Court must determine whether or not the restrictions meet the definition of an undue burden based on how substantial a roadblock it presents.
The Court may also be called upon to evaluate whether existing case law requires that restrictions must serve a valid purpose in order to be considered permissible. While related rulings have said states could implement abortion restrictions that protect the health of pregnant women and potential life, the plaintiffs are asking the Court to side with medical experts in assessing the new restrictions as without a valid purpose.
In order for the Court to say the abortion restrictions have a valid purpose, though, they must also address the issue of medical uncertainty. The Court has said in the past that they would not take a side in fierce medical debates, saying that was the job of the legislature to consider the evidence on both sides. Because of the impact of these regulations in Texas, and the circumstances under which they were passed, the plaintiffs are asking the Court to reconsider this default approach.
What does past case law say about the questions involved?
It may be tempting to assume that Roe v. Wade is central to evaluating Whole Woman’s Health v. Cole, but that would be a mistake. Yes, Roe v. Wade established the right affected in this case, but the questions raised by the case are far more closely tied to Planned Parenthood v. Casey and Gonzales v. Carhart.
Let’s talk about Planned Parenthood v. Casey first. In 1992, Pennsylvania had passed a series of restrictions on abortion access in the state, including required spousal consent, parental consent for minors, “informed” consent of the patient, and more. The Court was asked to determine if such restrictions infringed upon the right of a woman to seek an abortion prior to viability. At the time, any restrictions on abortion had to be evaluated with strict scrutiny, meaning they had to be justified as necessary. The plaintiffs in Planned Parenthood v. Casey were asking the Court to rule the Pennsylvania unconstitutional because they did not seem to be necessary to protect life or potential life.
The Court actually upheld many of the restrictions in question. The bigger surprise, though, came when they moved the goalposts when it came to evaluating whether restrictions on abortion were permissible.
As the plurality opinion stated:
The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.
The Court here reaffirms a sentiment found in Roe v. Wade — that the State may regulate the right to an abortion in order to preserve its interests. That was nothing new. The big change was the switch from the strict scrutiny standard to this new idea of undue burden. This basically let the state create any restriction they wanted, as long as it did not block a woman’s ability to choose an abortion in a big or meaningful way. This is the reason states are allowed to do things like require waiting periods, unnecessary ultrasounds, and more — these restrictions are intended to influence a woman’s choice, not block it.
According to this ruling, the plaintiffs in Whole Woman’s Health v. Cole need to demonstrate that lack of access to abortion services created by the Texas regulations in question creates a substantial enough roadblock for women seeking the procedure. Considering how big the impact of the Texas regulations has been, one might consider undue burden apparent, but an earlier passage in the Planned Parenthood v. Casey plurality decision casts doubt on whether limits on access to abortion services is considered substantial in they eyes of the Court. It reads:
As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.
Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.
The Court seems to be saying that how difficult it is to get an abortion doesn’t qualify as an undue burden, especially if the law increasing the difficulty isn’t specifically about the right to choose. In Whole Woman’s Health v. Cole, the entire case hinges on whether or not increased difficulty in getting an abortion in Texas represents an undue burden, and the law they’re challenging is about abortion service provider regulations. Sounds like bad news, right?
So we’re screwed?
Not so fast. There are two specific portions of these passages that should give us hope… even if it does render the case a bit more murky.
First off, the Court doesn’t technically say that difficulty accessing abortion as a result of a law can’t be an undue burden. It just says that increased difficulty isn’t enough of a reason to disallow a restriction on its own. There are two other comments that, when paired with the increased difficulty in accessing abortion, provide a pretty solid case for the Texas regulations getting the boot.
The passages in question establish that restrictions on abortion must serve to “inform the woman’s free choice, not hinder it.” The Texas regulations have absolutely nothing to do with informing a woman’s decision, but do significantly hinder their access to facilities in which they may make such a decision. This could bolster the claim that these restrictions, based on their function, are invalid.
More importantly, the comments about difficulty accessing abortion give cover to laws that serve a “valid purpose.” Given the consensus among experts in the medical community that the Texas regulations do not even remotely serve a valid purpose, the fact that they make getting an abortion in Texas inordinately difficult is still relevant.
So does Planned Parenthood v. Casey pretty much guarantee a win here?
Not necessarily. These arguments might make sense from where we’re standing, but a ruling like this changes precedent. Whether that’s the right or wrong thing to do, the Court is usually very careful about making such changes.
In this case, they would be changing precedent regarding how we determine whether or not an abortion restriction is acceptable. They’d basically have to adopt a hybrid of the strict scrutiny and undue burden standards. It would essentially be a two part test. Does the restriction serve a valid purpose? If the answer is no, the restriction cannot stand. If the answer is yes, the question becomes does the law inform or hinder the right to choose? If the law hinders choice, it’s done for. Basically, in order for a restriction to be permissible under this standard it must serve a valid purpose and inform but not hinder the right to choose an abortion. The Court would still be looking to make sure restrictions don’t impose an undue burden, but instead of trying to arbitrarily define what substantial means on any given day, they’d have a set of questions to help them determine the answer.
Sounds pretty reasonable. Let’s assume the Court does that–
You should never assume the Supreme Court is reasonable. Ever. You will be disappointed quite frequently.
Whatever. If the Court takes the reasonable route, we already know that a whole bunch of experts have said the Texas regulations don’t serve a valid purpose. Does that mean we’re in the clear?
Maybe. The impact of such a ruling is dependent upon what the Court deems as adequate justification for such a restriction. If the State believes that a restriction is necessary to protect the health of pregnant women, is that belief sufficient, or should they be required to present facts and expert opinions backing those beliefs? The latter would be a huge shift.
When it comes to abortion, the Court hasn’t wanted to touch this question with a ten foot pole. Instead, they say evaluating the debates in the medical community is the job of the legislature, stating that the court should defer to lawmakers’ judgment in the face of what they call “medical uncertainty.” This was most recently on display during the battle over so-called partial birth abortion in Gonzales v. Carhart. The case dealt with a federal partial birth abortion ban, and one of the key objections was that the law did not provide an exception for instances where a mother’s life was at risk. The Court decided that divides in the medical community on the subject were justification for not evaluating that specific conflict, instead relying on the legislature for such work.
Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court’s precedents instruct that the Act can survive facial attack when this medical uncertainty persists.
Shorter version: we don’t feel like evaluating these complex arguments so we’re going to call it a wash and let the law stand.
So we are screwed then.
Take a deep breath. It is possible that the Court would once again use this excuse to avoid debate over the validity of the Texas regulations, which could theoretically hobble the plaintiffs’ case, but there are two reasons that shouldn’t happen.
First, there is a major distinction between cases like Gonzales v. Carhart and Whole Woman’s Health v. Cole. Yes, medical opinions regarding past restrictions on abortion have been hotly debated, but there was overwhelming consensus in the medical community on the validity of the Texas regulations. That’s not uncertainty.
Second, case law outside the realm of abortion actually blows the whole medical uncertainty argument out of the water. In a unanimous decision in 1993, the Court ruled that expert testimony and research is crucial, serving as gatekeepers in terms of relevance and reliability. While the case in question related to a pharmaceutical dispute, this decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. is uniquely important in Whole Woman’s Health v. Cole. Central to the case is the ability of the plaintiffs to call into question the factual justification for the Texas regulations, and the 1993 ruling should indicate that this is absolutely appropriate.
Moreover, the gatekeeper standard introduced in Daubert v. Merrell Dow Pharmaceuticals, Inc. obliterates the applicability of medical uncertainty in this case. The Court found that Article VII Rule 702 for the Federal Rules of Evidence called upon the Court to evaluate expert testimony and opinion on the grounds of relevance and reliability as gatekeepers in the case. To put it more simply, the rule said that as long as expert testimony or opinions matter in the case and have some kind of basis in reality, it should be heard by the Court, and it’s the job of the Court to decide which experts make the cut.
This is important for the plaintiffs in Whole Woman’s Health v. Cole. If they want the Court to evaluate whether a law has a purpose, they’re going to need the Court to consider the insight of experts who say it’s not. If the Court does that, and compares the opinions of groups like the American Medical Association to opinions of, say, the representative who thought rape kits were an abortion, relevance and reliability weigh heavily in favor of the plaintiffs and make it more likely the Court will say the Texas regulations are unwarranted.
It sounds like we’ve got a chance, and this all makes sense, but it sounds like the plaintiffs are looking to overturn a whole lot of precedents here. Are they asking too much?
They really are asking a lot. In order for them to make their case, they need the Court to either do an about face on whether restricted access to abortion access is an undue burden, or rely on them to buck medical uncertainty and require states to factually support justifications for abortion restrictions. But these changes to precedent aren’t as dramatic as one might think. They aren’t asking for new rights. They’re asking the Court to reconsider what they consider an infringement upon an existing right.
That sounds reasonable. Alright, so I get that this case could change a lot of things, but is it really fair to call it “monumental”?
Oh, more than.
The most immediate impact of this decision will be felt in Texas. If the Court upholds the abortion clinic regulations, the state goes from 40 clinics to 9 and Texas women get screwed. If the Court rules those regulation create an undue burden or are without a valid purpose, the clinics stay in place. That ruling would also impact the 22 other states that require abortion clinics to meet the standards of ambulatory surgical centers and 13 states that require some sort of admission privileges at a local hospital.
Moreover, if the Court decides that restrictions on abortion have to have a valid purpose supported by facts, there are a slew of other policies that could topple. How many places could be impacted?
- 11 states prohibit insurance policies from covering abortion except in the case of life endangerment.
- 8 states require women to purchase “rape insurance” should they become pregnant as a result of sexual assault and wish to terminate the pregnancy.
- 5 states require women to be informed of a nonexistent link between breast cancer and abortion.
- 7 states require women to be informed of psychological damage related to abortion, despite studies debunking the claim.
- 28 states require a 24-hour waiting period that presents an undue burden to rurally located and low income women without any rational reasoning.
- 10 states ban abortion pre-viability in contradiction to current scientific findings and the central holdings of Roe v. Wade.
Talk about shaking things up.
But the impacts of this ruling could extend far beyond the abortion debate. A Supreme Court decision requiring factual basis for government regulation of scientific arenas could be an important precedent in the midst of big push on Climate Change. President Obama has made the issue a priority in his second term, and the Court is already responding favorably, most notably in 2014’s EPA v. EME Homer City Generation decision. In a 6-2 ruling, the Court upheld “good neighbor” regulations, allowing the EPA to strictly regulate emissions in “upwind” states in order to allow “downwind” states to meet their emission goals. Though the Court ruled against EPA mercury standards earlier this year, it was on a technicality related to timing of cost-benefit analysis. The Court declined to strike the rule entirely and made clear that they took no issue with the substance of the regulation.
In other words, the Court is already leaning left on environmental issues. As those who think throwing a snowball on the Senate floor disproves the expertise of thousands of scientists make efforts to combat legislation and regulations related to climate change, a ruling from the Court regarding factual basis for regulations — even in the context of abortion — could in theory be cross-applied to bring sanity to climate issues on the hill.
All this legal babble is giving me a headache.
Forget about the judiciary for a second then. This decision is going to blow up the American political climate… and it may happen right before a presidential election. The ruling will likely be handed down late summer or early fall, just ahead of November 8th.
If the ruling favors anti-choice beliefs, we may see a boost in voter turnout for Democrats willing to foam at the mouth over the subject, especially among Millennials. This would be significant, because turnout is likely to be the key to Democrat gains. Moreover, such a ruling could spur greater interest in state politics if the response is coordinated properly. If the Court refuses to rule restrictions like the ones seen in Texas unwarranted, it will fall to the state legislatures to set the course, and voters angry enough about the Supreme Court ruling may be motivated to take interest in elections that rarely garner intense public scrutiny.
If the ruling in any way, shape, or form favors pro-choice advocates, expect a collective freak out from the Right. Republican candidates are already competing to be the most anti-abortion name on the primary ballot, and a ruling that supports a woman’s right to choose will give them a perfect opportunity to engage in hysterics. This could boost turnout for the Republicans, but their freakouts could bring out just as many voters on the other side as Democrats worry about preserving judicial gains.
No matter how the ruling goes, though, the decision will sharpen the focus on the future of the Court. It is estimated that the next President will be in a position to appoint up to four new justices to the bench, which makes party control in the Senate and White House incredibly significant. Any ruling on an issue as perpetually divisive as abortion is going to serve as a stark reminder of the power of the Supreme Court and the impact of the 2016 election on the future of the country.
Grab your popcorn, folks.
Alright, alright… that’s a big deal. What can we expect from the Court?
This case will most certainly be a 5-4 split. Justices Sotomayer, Kagan, Breyer, and Ginsburg are pretty much locks for the plaintiffs here. They have all been outspoken about abortion being a right. Breyer was the author of the decision in Stenberg v. Carhart, rejecting a Nebraska law criminalizing the performance of so-called partial birth abortions. When the decision was basically voided in Gonzales v. Carhart, he joined the dissent. Sotomayor’s dissent in Burwell v. Hobby Lobby was blistering, while Kagan hit some bumpy road in her nomination proceedings when it was revealed she’d written a memo for the Clinton administration urging compromise on the partial birth abortion debate. The Notorious RBG is undoubtedly the most ferocious mother of dragons on abortion, breathing fire in scathing decisions and public statements. Of importance here, she’s also on the record tearing into the idea of “medical uncertainty” as an excuse for not evaluating the validity of abortion regulations, so we can likely expect her to be ready to pounce when the issue comes up.
In other words, the liberal band of four is pretty firmly set. Surprisingly, it’s the conservative side of the Court that’s going to be hard to predict. Yes, Justices Alito, Scalia, and Thomas are sure bets for ruling against the plaintiffs. All are on record as saying abortion is not a right, and their records show they walk the walk. If the case doesn’t go his way, brace yourself for a Scalia dissent that puts his rants in King v. Burwell and Obergefell v. Hodges look reasonable.
That leaves us with two somewhat surprising wild cards: Justices Kennedy and Roberts.
Why should we count on Kennedy?
You shouldn’t count on Kennedy, but you shouldn’t count him out, either. Kennedy is largely viewed as the definitive swing vote on any abortion case. Part of this stems from the fact that he actually wrote the decision in Planned Parenthood v. Casey, using very specific language about women’s bodily autonomy. Part of it comes from the fact that he split from the conservative pack in 1992 to uphold Roe v. Wade. Given these votes, it’s no wonder the pro-choice coalition is crossing their fingers and hoping that he sides with reason on this one.
But it’s certainly no sure thing. As David S. Cohen, associate professor at Drexel University of Law, accurately points out, those two votes were really anomalies in the broader scope of things, especially when it comes to regulation. Kennedy has heard cases relating to 21 different regulations on abortion. He’s upheld all but one. His medical uncertainty argument in Gonzales v. Carhart is particularly troubling in this context.
But in this specific case, those concerns may be misplaced. You have to remember that Kennedy was the architect of our current (if muddled) understanding of undue burden. He was all for this case, which centers on that ambiguous standard. Odds are he thinks undue burden means something, even if his fellow conservatives do not. Already Kennedy has broken with the conservative wing of the Court on this case — twice — to grant a stay in implementing the Texas regulations. And as we discussed above, the situation in Texas is different than the debate surrounding Gonzales v. Carhart, so the medical uncertainty line of thinking may not be too much of an issue here.
Perhaps most telling,though, is Kennedy’s obsession with the importance of personal choice. Whether talking about same-sex marriage or minimum sentencing, he has consistently demonstrated that he truly believes people should be able to make their own choices. Yes, the government can provide them tools for making those decisions, but the ultimate choice should be theirs. Whole Woman’s Health v. Cole presents him with the perfect opportunity to opine about choice, its connection to personal liberty, and the importance of human dignity.
See, Kennedy can deal with things like mandatory ultrasounds because he sees this as providing more information and perspective to a woman as she makes an important decision. It’s probably going to be hard for him to accept the fact that the best way to help a woman make her own decision is to make it impossibly difficult to get a chance to make that decision in the first place. He need only turn to his own reasoning in Planned Parenthood v. Casey to guide him. Linda Greenhouse & Reva B. Siegel did a great job of explaining how simple this might be for Kennedy, stating:
States may try to persuade women to choose childbirth, but may not obstruct them from acting on their decision to terminate a pregnancy. This distinction is crucial to Casey’s logic, and to the integrity of the undue burden framework as a compromise. A regulation that closes a clinic does not persuade a woman to forgo an abortion; it prevents her from obtaining one.
If the plaintiffs tee things up for him with passionate arguments about influencing choice versus preventing it, they may be able to win Kennedy over. In many ways, that’s the easier route to take. But even if Kennedy fails us, we may find an unlikely savior in Roberts.
Alright, Kennedy I can understand — but Roberts?
I know the idea of Roberts getting on board with protecting abortion sounds absurd. This is a man who approved a Reagan statement comparing Roe v. Wade to the Dred Scott decision. This is a man who signed onto a brief urging the overturn of Roe v. Wade as a lawyer in the George H.W. Bush administration. This is a man stewarding a supposedly conservative Court. There’s no way such a man would ever side with the plaintiffs here, right?
Hold your horses. Yes, Roberts signed off on some alarming memos and statements while serving Republican administrations, but he also made clear in his confirmation hearings that such writings were simply a reflection of the administrations he served and a function of his role as a staff member. He went on to state in both private meetings and the public hearings that he considered Roe v. Wade the “settled law of the land,” while emphasizing the importance of precedence in evaluating cases, insisting, “there is nothing in my personal views that would prevent me from fully and faithfully applying [the Roe v. Wade] precedent, as well as [Planned Parenthood v.] Casey.”
Yes, we’re living in the world of a Supreme Court where a Bush appointee is at the helm. But that Bush appointee, much to the dismay of conservative ideologues, is not so staunchly conservative as was assumed. Over the years, Roberts appears to be morphing into more of a moderate, ranking as the second most likely conservative justice to swing liberal on a close vote. Slate‘s Adam Winkler broke it down earlier this year, saying:
In controversies from abortion to campaign finance to guns, Roberts sided with Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy. The 2012 health care case was only the second time Roberts had ever voted with the liberal side of the court in a 5–4 decision. Lately, however, we’re seeing a very different Roberts. Last term Roberts surprised many by breaking left on a few major cases. And so far this term, Roberts has voted with Stephen Breyer (90 percent), Ruth Bader Ginsburg (85 percent), and Sonia Sotomayor (83 percent) more often than he has joined Thomas (66 percent), Kennedy (74 percent), and Alito (77 percent). And that isn’t just on minor cases. He’s recently sided with the liberals in cases on issues that typically divide the court along ideological lines, including campaign finance and anti-discrimination law.
This trend, of course, doesn’t mean we should expect Roberts to proclaim a woman’s uterus sovereign and ungovernable ground. It should, however, indicate that Roberts is not as immovable as some believe, especially when you take a look at some of his recent decisions.
His extraordinary efforts to uphold the major tenets of the Affordable Care Act in King v. Burwell demonstrate a willingness to navigate thorny and complex issues in order to ensure laws best serve the people to whom they apply. This could mean he’ll be more willing to navigate the complex case law interactions in Whole Woman’s Health v. Cole. And though he dissented in Obergefell v. Hodges this summer, his opinion made it clear that his objections had nothing to do with same-sex relationships and supposed morality qualms, saying the arguments in favor of same-sex marriage made sense from a policy perspective and that he did not begrudge those who would find cause for celebration in the ruling. This could be seen as a sign that traditional conservative morals will not necessarily guide his adjudication of abortion related issues.
It’s his take on stare decisis that could hold the most significance. In the context of Roe v. Wade, he has been adamant that precedence solidifies its findings and secures the right to abortion. Speaking more broadly about stare decisis, however, Roberts has pointed out that precedence is not an “inexorable command,” and has demonstrated a willingness to buck precedence since his earliest days on the bench. When he does so, though, it’s usually in a rather nuanced manner; he chooses to chip away at precedence citing special circumstances instead of outright reversing it.
This makes it super unlikely Roberts will throw his support behind a decision that overturns Roe v. Wade, as some pro-choice advocates fear. That’s too drastic, and doesn’t seem to align with his rationale in previous decisions. If anything, this approach to stare decisis, with his willingness to evaluate layers of complicated case law, his break with the conservative wing on issues of moral imperatives, and his preference for small shifts in precedent, may make him more likely to disallow extensive abortion restrictions on the basis of questionable state interests that lack any kind of rational backing.
So yeah, Roberts.
It sounds like you’re saying this is a toss up.
That’s exactly what I’m saying. Brace yourself for a year of anxiety, folks, and get ready for some spectacular fireworks at the end.