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Analysis

Brett Kavanaugh can use this case before SCOTUS to kill Roe v. Wade

Reproductive choice is on life support, and five Republican men hold the plug.

CREDIT: Melina Mara-Pool/Getty Images
CREDIT: Melina Mara-Pool/Getty Images

In 2016, then-Indiana Gov. Mike Pence signed a law whose main purpose appears to be trolling the libs. Just over two years later, this law could provide the Republican-controlled Supreme Court with the vehicle it needs to kill Roe v. Wade — and the Court could decide to hear a challenge to this law as soon as Friday.

The case is Box v. Planned Parenthood of Indiana and Kentucky.

The Indiana law requires abortion clinics to treat aborted fetuses as if they were deceased human bodies. It also prohibits doctors from performing an abortion if the doctor “knows that the pregnant woman is seeking” an abortion “solely” because of the fetus’ sex, race, disability or a handful of other protected traits.

It’s an obviously unconstitutional law. So much so, in fact, that two federal appellate judges, both of whom were appointed by Republican presidents, struck the law down — and a third agreed that the ban on why people can seek abortions violates existing precedents. The law, Judge William Joseph Bauer wrote, violates “well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.”

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Pence’s law simply wasn’t designed to survive judicial review. It was designed to let Fox News accuse Planned Parenthood of wanting to kill black babies. It’s the kind of law you get if you hand the legislative power over to the editors of Breitbart News.

But then something unexpected happened. The second-place finisher in the 2016 election somehow became president of the United States. Both of the men the serial-sexual-predator-turned-president placed on the Supreme Court took gratuitous swipes at abortion rights while they were lower court judges. There are almost certainly five men on the Supreme Court right now who believe that the Indiana law is constitutional.

Yet, while it is inevitable that the Court’s current majority will eventually gut Roe v. Wade — at least barring extraordinary events that allow a Democratic president to flip partisan control of the Court before its Republicans seize their chance to act — there is some lingering uncertainty about how quickly the Court’s Republicans will act.

Should they take up the Box case, moreover, it’s unclear how the Court’s Republicans will attack Roe. Though all five of them are nearly certain votes against abortion rights, there are political reasons why this Court may not want to write the words “Roe v. Wade is overruled.”

A cooling off period?

Last month, the Supreme Court decided not to hear a pair of cases — Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri — involving state laws seeking to defund Planned Parenthood. It was a surprising development.

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Abortion politics aside, the Court typically agrees to hear cases where different federal appeals courts have reached different answers to the same legal question (a circumstance known as a “circuit split”), and such a split existed in these cases. Five federal appeals courts held that individual plaintiffs may sue their state if the state removes their health provider from the state’s Medicaid program — the states of Kansas and Louisiana tried to deny Medicaid funds to Planned Parenthood — while one court disagreed.

In dissent, Justice Clarence Thomas lashed out at his colleagues who turned Andersen and Gee aside. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood,’” Thomas wrote, complaining that “some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.”

Typically, four members of the Court must agree to hear a case, but Thomas’ dissent was joined only by Justice Samuel Alito and Neil Gorsuch. That means that both Chief Justice John Roberts and Brett Kavanaugh voted not to hear these particular cases.

It’s unlikely that Roberts or Kavanaugh did so out of any sympathy for Planned Parenthood. Rather, as I wrote at the time, the Court’s decision not to take up Andersen and Gee “gives credence to the theory that Roberts and Kavanaugh want to give the nation some time to forget about how Kavanaugh got his current job before they declare outright war on reproductive choice.”

The judiciary, after all, has limited political capital. Its members are not elected. And it depends on voluntary compliance to enforce most of its orders. Lashing out at Planned Parenthood shortly after the Court’s newest member was credibly accused of attempted rape is a bad idea if the Court wants to maintain its political capital.

At the same time, however, the Court is unlikely to stay away from abortion cases forever. And the particular issue at stake in Andersen and Gee was only tangentially related to abortion rights. There will be other cases presenting the same Medicaid question that don’t involve an abortion provider, so the Court can resolve that issue when one of those cases arrives on its docket.

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Box, by contrast, is the newly Trumpified Court’s first chance to hear a case that cuts right at the heart of reproductive rights. If the Court takes up Box, it would be a clear sign that its Republican members are ready to spend their political capital on taking down Roe v. Wade.

Two ways to kill Roe

There is an honest way, and a dishonest way, that the Supreme Court could eliminate the right to have an abortion. The honest way would be simply writing the words “Roe v. Wade is overruled.”

The downside of that approach, at least if you are a Republican member of the Court, is that it risks galvanizing Democratic voters who are already livid at the sexual predator in the White House and the sexual predator on the Supreme Court. In 2018, according to CNN exit polls, women voters preferred Democrats over Republicans by nearly 20 points. That gap could grow even larger if a partisan Court strips women and gender minorities of much of their reproductive freedom.

So the other option is to drain the right to choose of any real meaning, while simultaneously claiming that some hollow shell of Roe remains good law.

Texas attempted this strategy in 2013, when it enacted a series of abortion clinic regulations intended to shut down many of those clinics. Under this law, abortion doctors had to acquire difficult-to-obtain credentials from nearby hospitals, while the clinics themselves had to comply with expensive architectural rules that often had nothing to do with the actual treatments they offered. For example, every clinic was required to maintain a full surgical suite, even though many abortion clinics only offer abortions via medication — non-surgical abortions induced by pills taken orally.

The Supreme Court struck this Texas law down in Whole Woman’s Health v. Hellerstedtholding that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” and are unconstitutional. Hellerstedt, however, was a 5-3 decision, with retired Justice Anthony Kennedy casting the fifth vote against the Texas law. (The ninth seat on the Court was vacant due to Justice Antonin Scalia’s death.)

With Kennedy gone, and Kavanaugh ascendant, Texas’ law would almost certainly be upheld if it reached the Court today.

Indeed, the Court could potentially go ever further than that. It could announce that states may require all abortion clinics to have an operating room made out of solid gold, or require abortion providers to complete a certification class taught by the Pope. The purpose of the Texas law, simply put, was to make it impossible for many clinics to remain open, and if the Supreme Court gives the thumbs up to such a law, anti-abortion lawmakers will get creative.

Box offers the Court a similar opportunity to eliminate the right to an abortion while pretending that some shell of Roe is still alive. Yes, the Indiana law at issue in Box is an act of trolling written to let abortion opponents accuse abortion supporters of racism. But once the Court tears down the long-established rule that “a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason,” anti-abortion lawmakers will get very aggressive.

It’s not hard to imagine laws forbidding pregnant individuals from having abortions due to financial hardship. Or because they do not want to have a child with the person who impregnated them. Or because they aren’t ready for children. Once states are allowed to probe why someone wants to terminate their pregnancy, the state can effectively forbid abortions for any reason.

Personhood

Meanwhile, an especially radical theory looms over the Box litigation — the concept of “fetal personhood.”

The Fourteenth Amendment provides that no “person” may be denied “the equal protection of the laws.” In Roe v. Wade, the Supreme Court explained that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

Should the Supreme Court reverse course on this determination, however, it would have sweeping implications for abortion rights. Among other things, state murder laws that discriminate between born and unborn “persons” could potentially be unconstitutional. Fetal personhood would not simply permit states to ban abortion, it could potentially require states to ban abortion — and even to prosecute people who have abortions as murderers.

Historically, Republican justices have not shown much interest in fetal personhood. Justice Scalia, for example, believed that “the States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” But Scalia also wrote these words during a time when the Court was less partisan, and when simply convincing four of his colleagues to join him in overruling Roe was an uphill battle.

Trolling aside, the Indiana law is also an invitation for the Supreme Court to embrace fetal personhood — should its Republican members choose to do so. As Judge Bauer explained in his opinion striking down the Indiana law, its provisions laying out how fetal remains must be disposed of were an effort to normalize fetal personhood.

The fetal disposition provisions essentially require abortion providers to dispose of aborted fetuses in the same manner as human remains, as required under Indiana law. According to the State, the provisions further the State’s legitimate interest in “the humane and dignified disposal of human remains.” Such a position inherently requires a recognition that aborted fetuses are human beings, distinct from other  surgical byproducts, such as tissue or organs. Indeed, in its brief, Indiana maintained that it “validly exercised its police power by making a moral and scientific judgment that a fetus is a human being who should be given a dignified and  respectful burial and cremation.”

Will the Supreme Court go all the way from prohibiting abortion bans to holding that they are required by the Constitution? Probably not in one opinion. And probably not any time soon.

But anti-abortion groups are nothing if not aggressive, and they are unlikely to be satisfied by a regime that permits Indiana to ban abortion so long as the procedure is still legal in Illinois.

Time remains on the side of Team Anti-Choice. The Supreme Court probably will not embrace fetal personhood. It may not even agree to hear the Box case. But so long as the Court’s present majority sits, Roe is on an almost certain course towards oblivion.