The Supreme Court just quietly handed a big victory to abortion opponents

Trump's judges just got a clear signal that they can chop away at abortion rights and get away with it.

CREDIT: Ricky Carioti/The Washington Post via Getty Images
CREDIT: Ricky Carioti/The Washington Post via Getty Images

The Supreme Court announced on Tuesday that it will not hear Planned Parenthood of Arkansas v. Jegley, despite the fact that the lower court’s opinion in this case is at odds with the Court’s 2016 opinion striking down a Texas anti-abortion law.

As a general rule, it is important to not over-read the significance of the Court’s decision not to hear a case. Often, the justices may turn aside a case for idiosyncratic reasons that have little to do with the merits of the case itself.

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In the abortion context, however, anti-abortion lower court judges have a long history of reading the Supreme Court’s precedents creatively in order to limit reproductive freedom. The Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt was widely viewed as the justices’ way of signaling to these lower court judges that they went too far.

Viewed in light of this history, anti-abortion judges are likely to read the Court’s non-decision in Jegley as a signal that they can once again start playing games. Meanwhile, Donald Trump is filling the federal bench with judges who oppose Roe v. Wade. The result is likely to be a quiet rollback of abortion rights as Trump’s judges and their allies feel out just how much leeway the Supreme Court is willing to give them.

So, regardless of what the Court intended to accomplish by turning away Jegley, the practical effect is likely to be serious restrictions on the right to choose.

Bending the law

Whole Woman’s Health involved Texas’ effort to restrict abortion by enacting a law that superficially appeared to be an ordinary health regulation — while simultaneously doing little to protect anyone’s health and a great deal to shut down abortion clinics. Among other things, the Texas law required abortion providers to obtain admitting privileges at a nearby hospital, even though the state’s own lawyers admitted that there was no evidence that this requirement “would have helped even one woman obtain better treatment.”

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Shortly after this requirement took effect in Texas, “the number of facilities providing abortions dropped in half, from about 40 to about 20.”

Jegley involves an Arkansas law that, at least on its face, is somewhat milder than the Texas law struck down in Whole Woman’s Health. The Arkansas law applies only to physicians who provide medication abortions — that is, abortions that are induced by pills, rather than carried out through a surgical procedure — and it requires those physicians to “have a signed contract with a physician who agrees to handle complications” arising from the abortion. This outside physician must “have active admitting privileges and gynecological/surgical privileges at a hospital designated to handle any emergencies associated with the use or ingestion of the abortion-inducing drug.”

As a practical matter, however, the Arkansas law had a similar effect to the Texas law. Before the law was enacted, Arkansas had three abortion clinics. The law is expected to stop two of those clinics from providing abortions and force the third to stop offering medication abortions.

At least on the surface, the United States Court of Appeals for the Eight Circuit’s decision in Jegley appears narrow. “Because the district court failed to make factual findings estimating the number of women burdened by the statute,” Judge Raymond Gruender wrote for the court, “we vacate the preliminary injunction and remand for further proceedings.” So the trial court could theoretically make these factual findings and suspend Arkansas’ law once again.

Yet the Jegley opinion also takes significant liberties with the Supreme Court’s decision in Whole Woman’s Health. Its language suggests that, even if the trial judge does jump through the hoops laid out in Jegley, the Eighth Circuit will find a new reason to reinstate the Arkansas law.

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For one thing, it is far from clear why a district court should be required to “make factual findings estimating the number of women burdened by” an anti-abortion statute before that statute can be enjoined.

In Whole Woman’s Health, the Supreme Court pointed to the fact that the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000″ after Texas’ admitting privileges requirement took effect. And it reached the fairly obvious conclusion that closing half the abortion clinics in Texas would lead to “fewer doctors, longer waiting times, and increased crowding” in the remaining clinics. But it didn’t require anything as rigid as an estimate of the specific number of patients burdened by the law.

Jegley also makes a fairly ham-handed attempt to revive a legal standard that the Supreme Court explicitly rejected in Whole Woman’s Health.

In its 2007 decision in Gonzales v. Carhart, the Supreme Court held that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Anti-abortion policymakers — both in state legislatures and the on the federal bench — frequently read this language from Carhart as a license to make false claims about the health effects of a particular anti-abortion regulation and then point to those false claims as evidence that “medical and scientific uncertainty” exists.

Jegley claims that Carhart‘s language regarding medical uncertainty survives Whole Woman’s Health intact. “Because Hellerstedt expressly relied on Gonzales
v. Carhart,” Judge Gruender wrote, “the Court preserved its command that ‘state and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.’”

This is, to say the least, an unusual reading of Whole Woman’s Health. In that opinion, the Supreme Court held that “the statement that legislatures, and not courts, must resolve questions of medical uncertainty” is “inconsistent with this Court’s case law.” In response to the Fifth Circuit’s conclusion that “medical uncertainty underlying a statute is for resolution by legislatures, not the courts,” the Supreme Court concluded that “the Court of Appeals’ articulation of the relevant standard is incorrect.”

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So, while Jegley gives Planned Parenthood another chance to go back to the trial court and present the district judge with additional facts, it stacks the deck pretty hard against abortion rights. Indeed, it stacks the deck in much the same way that the Fifth Circuit did when it reached conclusions that were explicitly rejected by the Supreme Court.

Back to the wild west

Prior to Whole Woman’s Health, lower courts frequently permitted states to enact aggressive anti-abortion laws, just so long as they could hide the law’s true purpose behind spurious claims that the law existed to protect patients’ health. This regime arose in part from language in Supreme Court decisions such as Carhart, which suggested that abortion rights were on the wane. But it also arose because the Supreme Court treated these lower court decisions with a kind of salutary neglect, allowing most anti-abortion decisions by lower courts to go unreviewed.

On the day it was handed down, Whole Woman’s Health suggested that this age of salutary neglect was over, and that the Court would start policing abortion rights once again. The Court’s decision to permit Jegley to stand will now send the opposite message to lower courts — “go ahead and uphold that anti-abortion law, because the Supreme Court is unlikely to do anything about it.”

Looming over Jegley, moreover, is the possibility that Whole Woman’s Health could be reproductive freedom’s last stand in the federal courts. Justice Anthony Kennedy, who turns 82 next month, is rumored to be considering retirement. And he provided the key fifth vote in Whole Woman’s Health. If he is replaced by Donald Trump, that will almost certainly be the end of abortion rights in the federal judiciary.

Indeed, it is possible that the four liberal justices elected not to hear Jegley (in the Supreme Court, four justices are enough to take up a case for a full hearing) because they fear that a retirement is imminent, and they don’t want to give Trump’s appointee a vehicle to overrule what is left of Roe.