Wednesday, the Texas attorney general’s office sent the Supreme Court a blueprint for overruling Roe v. Wade without actually having to write the words “Roe v. Wade is overruled.” It is a heavy-handed, oafish appeal to the darkest fears of abortion opponents. It is also an absolutely brilliant bid for the one vote that matters in a major abortion case, Justice Anthony Kennedy’s.
The occasion for Texas’s bid to gut what remains of Roe is a case called Whole Woman’s Health v. Hellerstedt, a challenge to a 2013 Texas law that would shut down the overwhelming majority of the state’s abortion clinics if it takes full effect. The fate of the law this law almost certainly rests with Kennedy, who is the closest thing the Court has to a swing vote between four conservatives all-but-certain to uphold restrictions on abortion and four liberals just as likely to oppose the Texas law.
Kennedy is, to put it mildly, not the most precise thinker on the Supreme Court. He tends to approach the law through vague concepts such as “dignity” and “liberty” rather than diving deep into doctrines, text and constitutional history. At times, this freewheeling approach benefits liberals, such as when Kennedy wrote that “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.” At other times, it benefits conservatives, such as when he wrote in an anti-abortion decision that “respect for human life finds an ultimate expression in the bond of love the mother has for her child.” When Kennedy approaches a monumental moral question such as abortion, his answer will be rooted at least as much in how he feels about the subject as it will be rooted in neutral principles of the law.
So let’s not beat around the bush. Kennedy hates abortion. Before the law at issue in Whole Woman’s Health reached the Court, Kennedy considered 21 different restrictions on abortion as a Supreme Court justice. He voted to allow 20 of them to go into effect. At oral arguments in Burwell v. Hobby Lobby it immediately became clear that Kennedy would limit Obama administration regulations seeking to expand access to birth control when he accused the Justice Department, with real anger in his voice, of advocating for a legal rule that would permit Congress to require corporations to pay for abortions. If you doubt the visceral uncomfort Kennedy harbors towards abortion, read his opinion in Gonzales v. Carhart, which includes several gruesome and gratuitous descriptions of an abortion procedure banned by federal law. Don’t read it with a full stomach.
With two exceptions, Kennedy has been a reliably anti-abortion vote during his nearly 30 years on the Supreme Court.
Significantly, however, one of these exceptions is Whole Woman’s Health. Last June, Kennedy broke with the Court’s four other conservatives to temporarily stay a federal appeals court decision allowing the bulk of the Texas law to take effect. The other exception is Planned Parenthood v. Casey a 1992 case that squarely presented the question of whether Roe should be overruled. Though the opinion Kennedy co-authored in Casey significantly diminished women’s right to choose an abortion, it also claimed to retain “the essential holding of Roe v. Wade.”
So Kennedy tends to judge cases with his gut. He’s repulsed by abortion. Yet he’s also showed caution about wiping Roe from the casebooks entirely. As the opinion he co-wrote in Casey explains, “whatever degree of personal reluctance any of us may have” about leaving Roe in place, the doctrine of stare decisis that instructs judges to be reluctant to overrule past precedents counsels strongly in favor of retaining some nub of Roe.
Enter Scott Keller. Keller is the Solicitor General of Texas, an office with a history of hiring brilliant but very conservative attorneys to steer its course. Keller previously served as chief counsel to another former Texas solicitor general — Sen. Ted Cruz (R-TX). Before that, he was a law clerk to Justice Anthony Kennedy.
So Keller understands the volatile mix of emotions, vague principles, and concern for the Court’s political legitimacy that drives his former boss on the Supreme Court. It shows in the brief Keller authored in Whole Woman’s Health. Literally the very first line in Keller’s brief references Kermit Gosnell, a murderer who ran an illegal abortion clinic that offered procedures more reminiscent of an abattoir than a medical practice. Gosnell’s name appears eleven times in the brief, and he plays a starring role in the origin story Keller tells about the law challenged in Whole Woman’s Health.
As Keller tells this tale, the Texas law — which is expected to shutter at least 32 of the 40 abortion clinics that existed in Texas before it was enacted — was passed “in the wake of the Gosnell scandal” to “‘increase the health and safety’ of abortion patients and provide them with ‘the highest standard of health care.’” It’s a smart play for the same Justice Kennedy who wrote an almost pornographically gruesome opinion in Gonzales. It’s an effort to bypass Kennedy’s brain and go straight to his gag reflex.
It’s also an origin story that’s hard to square with the details of Texas’s actual law. For one thing, as the plaintiffs challenging the Texas law explain in their brief to the Supreme Court, “the Executive Director of the Texas Medical Board testified that, from her thirteen-year tenure at the Board, which included service as Manager of Investigations and Enforcement Director, she could not identify a single instance in which a physician providing abortions engaged in conduct that posed a threat to public health or welfare.” So shutting down nearly three dozen clinics is hardly a proportional response to the crimes of one doctor in a distant state.
Similarly, the Texas law imposes numerous restrictions that bear little, if any, relationship to preventing Gosnell-like crimes. Among other things, the law imposes a long list of expensive architectural and other requirements on Texas abortion clinics. Certain hallways must be at least eight feet wide, while doorways leading to examination rooms must be at least three feet wide. HVAC systems and ventilation ducts must meet precise specifications, as must plumbing and sprinkler systems. Even water fountains are regulated — they must be “designed so that the water issues at an angle from the vertical,” among other things.
It’s difficult to see how a water fountain would have stopped Gosnell from delivering live babies and then killing them by severing their spines.
And then there’s this statement by Texas’s former lieutenant governor, which rather explicitly states that Texas had something other than protecting women’s health in mind when it enacted this law:
— David Dewhurst (@DavidHDewhurst) June 19, 2013
Keller’s strategy, in other words, appears to depend on Kennedy being worked into such a fury by references to an infamous killer that the justice does not bother to dig any further into the real purpose behind the law.
The Sham Health Law
Should Kennedy side with Texas, however, Keller’s brief also offers his former boss an ingenious way to neuter Roe without explicitly overruling it.
Whole Woman’s Health concerns two provisions of this law, one of which requires clinics to comply with a long list of “electrical, heating, ventilation, air conditioning, plumbing, and other physical plant requirements as well as staffing mandates, space utilization, minimum square footage, and parking design,” and another which requires doctors who perform abortions to be allowed to admit patients at a hospital no more than 30 miles away. The genius of this law is that it appears to be an ordinary health regulation. The architectural and other requirements imposed on clinic facilities bring those clinics in line with the rules that apply to “ambulatory surgical centers” in Texas, and admitting privileges certainly sound like a valuable credential which could streamline the process of receiving emergency care if a patient should experience complications during her abortion.
The Supreme Court’s abortion decisions permit states to enact legitimate health regulations of abortion clinics, just as they permit states to regulate hospitals and other health providers to ensure that they comply with minimum standards of care. So if Texas’s law is a real effort to protect women’s health, it would fit within these precedents.
It does not take much digging, however, to start doubting that Texas’s attempt to justify the law as a health regulation is anything more than a sham. Take the ambulatory surgical center requirements, which, as the name implies, are a list of requirements generally applied to facilities where surgeries are performed. The reason why these regulations require certain hallways to be eight feet wide, for example, is so that it is possible for two hospital beds to pass each other side by side. Yet the Texas law applies this requirement even in abortion clinics that only provide medication abortions — that is, in facilities that perform no surgeries. Thus, abortion clinics must build halls wide enough to accommodate two hospital beds even if exactly zero beds pass through their halls.
Similarly, admitting privileges bear little relationship to patient care. As the Texas Hospital Association explains, “thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges.” If a patient arrives at an emergency room due to complications related to an abortion, the hospital will treat that patient, and the treating physician will still consult with the doctor who performed the abortion regardless of whether that doctor has admitting privileges.
There’s also a practical reason why doctors whose practice primarily consists of abortions may not be able to obtain admitting privileges. Many hospitals won’t extend admitting privileges to a physician unless that doctor admits a certain number of patients per year. But complications arising from abortions are so rare that abortion providers often cannot meet this quota.
Most lawsuits alleging that a law violates the Constitution exist along a spectrum. The overwhelming majority of laws must only survive what is known as “rational basis” review, which means that the law will be upheld so long as the government can articulate a reason why the law may be justified. Nearly all laws clear this very low bar. At the other end of the spectrum, laws that violate an explicit constitutional prohibition, or that engage in certain forms of discrimination, or that violate a right the Court deems “fundamental” are subject to “heightened” or even “strict scrutiny.” In these cases, courts probe deeply to determine whether the law is well tailored to advancing an important or compelling government interest.
Ever since Casey, however, abortion has existed outside of this normal spectrum. Under the vague standard announced in that decision, states may regulate abortion so long as they do not impose an “undue burden” on the right to choose, which occurs if the law’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” This standard clearly requires courts to apply more skepticism than the very permissive rational basis test, but Casey also leaves courts with fairly little guidance about what “undue burden” actually means.
After Casey, moreover, Justice Kennedy also took another big chunk out of Roe. Lawmakers, Kennedy wrote in Gonzales, have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
This is the loophole that Keller attempts to drive a truck through with his brief. To Keller, any doubts about whether Texas’s law will actually advance a woman’s health is nothing more than “disputed medical evidence about [the law’s] justification.” To strike down the Texas law, he tells the Court, would be “to ‘credit’ one version of the disputed medical evidence . . . and reweigh the legislature’s balance of policy interests.” So long as the state can raise some uncertainty about whether an abortion restriction is medically justified, that is sufficient reason to uphold the law under Keller’s standard.
Such a standard, however, bears little practical difference from the rational basis test. There is no shortage of physicians who oppose abortion and who will be willing to raise “uncertainties” about whether a particular restriction advances the public health, so states will have no trouble producing experts who will create uncertainty where none seems to exist. That may require the state to put in a little more work to defend an abortion restriction in court, but it ultimately will do little, if anything, to prevent such restrictions from going into effect.
This, in other words, is how Roe v. Wade could die this year — not in an opinion that summons bold headlines declaring “ROE OVERRULED” in a presidential election year, but in a far more subtle appeal to manufactured uncertainty.