Barring extraordinary events, the eight justices of the Supreme Court will begin a three month summer vacation next week. Before they go, however, they need to resolve a little over a dozen cases, including an attack on the Obama administration’s immigration policies, a major challenge to affirmative action, and the most significant abortion case to reach the Supreme Court since the right to choose’s near death experience in 1992.
The Supreme Court has been a dangerous battlefield for pro-choice advocates since 2006, when the appointment of Justice Samuel Alito gave conservatives a solid grip on the nation’s highest Court. Indeed, not long after Alito joined the Court, he provided the key fifth vote in Gonzales v. Carhart, which effectively overruled a 5–4 pro-choice decision and appeared to provide groups opposed to abortion with a blueprint they could use to undermine reproductive freedom.
Carhart upheld a ban on a procedure called “intact dilation and extraction,” which many physicians believe to be the safest method of aborting a fetus under certain circumstances. Significantly, in upholding this law, the Court held that lawmakers enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Thus, if lawyers can convince the courts that there is genuine disagreement about the medical value of a law that restricts abortion, Carhart seems to suggest that this law should be upheld.
It didn’t take long before anti-abortion advocates and their allies in state legislatures began to test just how far the courts were willing to push Carhart — and whether they would sustain anti-abortion laws based on the illusion of medical uncertainty.
The Texas law at issue in Whole Woman’s Health v. Hellerstedt, the case current pending before the Supreme Court, is the culmination of this strategy by abortion opponents. Masterminded by Americans United for Life, a sophisticated group that drafts model legislation for state lawmakers eager to restrict access to abortion, Texas’ HB2 imposes expensive architectural and other requirements on abortion clinics and often-difficult-to-obtain credentialing requirements on abortion providers.
On the surface, HB2 appears to be a rather ordinary series of health regulations. It’s defenders argue that HB2’s requirement that abortion clinics comply with the costly standards Texas imposes on “ambulatory surgical centers,” for example, will make these facilities safer for women by bringing them into compliance with standards that are already imposed on many other facilities that perform surgeries.
A decision upholding HB2 could allow abortion opponents to turn packs of wolves loose in abortion clinics, so long as those wolves are dressed in sheep’s clothing.
If a court digs just a few inches below the surface, however, it rapidly becomes clear that the the law imposes potentially crippling burdens on abortion clinics, often with no apparent health benefits whatsoever. The ambulatory surgical center requirement, for example, applies even to clinics that perform no surgeries all at — many clinics only offer medication abortions, which are induced by pills taken orally.
Before HB2, Texas had 40 licensed abortion clinics. If the law takes full effect, a trial judge wrote that “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.”
A decision upholding HB2 would likely endanger these remaining abortion clinics as well, because it is almost certain that states like Texas would try to push the envelope even further if they scored a big victory in the Supreme Court. Once the courts permit states to enact sham health laws whose real purpose is to restrict abortion, the only limit on such restrictions may be lawmakers’ ability to pass clever laws. A decision upholding HB2 could allow abortion opponents to turn packs of wolves loose in abortion clinics, so long as those wolves are dressed in sheep’s clothing.
Fortunately for abortion providers, the possibility that Texas will win outright in Whole Woman’s Health appears to have died with the late Justice Antonin Scalia. At oral argument, the Court’s four liberals took turns pummeling Texas Solicitor General Scott Keller as he tried to defend the law. In a Court that’s down one member, four is enough to prevent the justices from handing down a precedent-setting decision permitting laws like HB2 to thrive nationwide.
Nevertheless, the stakes remain high in Whole Woman’s Health, in large part because Texas won its case in the conservative United States Court of Appeals for the Fifth Circuit. If the Supreme Court splits 4–4, that Fifth Circuit decision will remain in effect for at least as long as it takes for the justices to consider this issue again after their ninth colleague is confirmed.
That said, a 4–4 split did not appear likely after the justices heard oral arguments. Justice Anthony Kennedy is the closest thing the Supreme Court has to a swing vote on abortion, though he almost always swings to the right. Prior to Whole Woman’s Health, Kennedy “voted to strike down only one of the 21 abortion restrictions that have come before the Supreme Court since he became a justice.”
In this case, however, Kennedy voted to stay the Fifth Circuit’s decision, and, at oral argument, he suggested that Keller’s arguments lead to the conclusion that HB2 creates an “undue burden” on the right to choose. Under, Planned Parenthood v. Casey, which Kennedy co-wrote, states are forbidden from imposing an undue burden on this right.
So Team Choice has good reason to be optimistic as it enters the most important week for abortion rights in a generation. But the stakes also remain incredibly high, and a loss in this case could cripple what remains of a woman’s right to terminate her pregnancy.