A panel of three Republican judges openly defied the Supreme Court on Monday, permitting a law that is nearly identical to the abortion restriction the justices struck down in Whole Woman’s Health v. Hellerstedt to take effect.
Just like Hellerstedt, Comprehensive Health v. Hawley concerns two restrictions on abortion. The first requires abortion clinics to comply with expensive architectural requirements, the second requires that “all doctors who perform abortions at ASCs must be ‘privileged to perform surgical procedures in at least one licensed hospital in the community.’” Again, the Supreme Court struck down a nearly identical Texas law in Hellerstedt.
In fairness, the two laws are not entirely identical. Most notably, Missouri’s law permits individual abortion clinics to see waivers from the “physical plant regulations,” and at least one such waiver has been granted for a clinic that made a “minor request.”
Judge Bobby Shepherd, a George W. Bush appointee, wrote for himself and his fellow Republican judges that the challenge to these “physical plant” requirements may need to be delayed until after a clinic first tries to obtain a waiver. There are strong legal arguments against Shepherd’s position here, but Shepherd and his two colleagues at least claim that this waiver system meaningfully distinguishes Hawley from Hellerstedt.
The same cannot be said, however, about Missouri’s law requiring abortion providers to be able to perform surgical procedures at a nearby hospital. Indeed, if anything, this provision of Missouri’s law is significantly more restrictive than Texas’. The law struck down in Hellerstedt merely required abortion doctors to “have active admitting privileges at a hospital” within 30 miles of the clinic. The Missouri law requires abortion providers to be able to perform surgeries in a nearby hospital, and it requires that hospital to be no more than “15 minutes away.”
And yet, the panel of three Republican judges all conclude that this provision may stand, at least for now. Judge Shepherd claims this result is justified because “Hellerstedt did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional.” The Supreme Court’s opinion in Hellerstedt determined that abortion was very safe in the state of Texas, but “no such determination about abortion in Missouri was made here.”
It is unclear why, exactly, Shepherd believes that the relative safety of abortion in Texas is likely to be different than that in Missouri. Perhaps Shepherd believes that the human uterus is shaped differently in the state of Texas? Or that Texas doctors receive vastly different medical training than doctors in Missouri?
In any event, the practical impact of Hawley is that abortion clinics must prove anew that requiring abortion doctors to maintain difficult-to-obtain credentials is an undue burden on the right to an abortion. And that they must do so despite the fact that, in Hellerstedt, the lawyer representing Texas was not able to identify “a single instance in which the new requirement would have helped even one woman obtain better treatment.”
Hawley reads Hellerstedt to be good-for-this-ride only decision that has no implications whatsoever for other states that literally pass the exact same law.
Needless to say, this is not how constitutional litigation typically works. Yet, while Hawley is impossible to square with Hellerstedt, it is likely that Shepherd and his colleagues will get away with their open rebellion against the rule requiring lower court judges to obey Supreme Court decisions.
For the moment, the Supreme Court is split evenly between four pro-choice Democrats and four Republicans who oppose abortion. It takes five justices to reverse Shepherd’s decision in Hawley.
Moreover, in the likely event that Judge Brett Kavanaugh is confirmed to replace retired Justice Anthony Kennedy, the Supreme Court will almost certainly kill what remains of Roe v. Wade. Kavanaugh’s speeches, judicial record, and confirmation hearing testimony leave no doubt that he opposes the right to an abortion.