Why Abortion-Rights Activists Should Fear the Supreme Court

A high-court ruling is seen as a likely last-ditch effort to stop sweeping antiabortion legislation passed in Texas and other states. But counting on a win is a very risky gamble for the law’s opponents.

WASHINGTON, DC - JANUARY 22: Pro-choice activists hold signs as marchers of the annual March for Life arrive in front of the U.S. Supreme Court January 22, 2014 on Capitol Hill in Washington, DC. Pro-life activists from all around the country gathered in Washington for the event to protest the Roe v. Wade Supreme Court decision in 1973 that helped to legalize abortion in the United States.
National Journal
Sam Baker and Sophie Novack
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Sam Baker and Sophie Novack
May 18, 2014, 7:40 a.m.

The abor­tion-rights move­ment is on the verge of a massive gamble.

The move­ment is try­ing to roll back a wave of state laws that have suc­cess­fully cur­tailed ac­cess to abor­tion, and their best hope for do­ing so — per­haps their only hope for do­ing so — is likely a rul­ing from the Su­preme Court. Ad­voc­ates could soon get their wish: A Texas an­ti­abor­tion law ap­pears headed to the high court as soon as its next ses­sion, and a rul­ing against it could put oth­er states’ abor­tion re­stric­tions on the shaki­est of leg­al ground.

But it’s also a move that could back­fire: The ad­voc­ates have no guar­an­tee the Court will rule in their fa­vor. The pan­el is di­vided and ex­ceed­ingly dif­fi­cult to fore­cast, and it could is­sue an un­fa­vor­able rul­ing that would not only sanc­tion the Texas law — but also pave the leg­al way for new an­ti­abor­tion laws na­tion­wide.

“I think it is a huge risk,” said Heath­er Busby, ex­ec­ut­ive dir­ect­or of NARAL Pro-Choice Texas. “My con­cern is that at least four, if not five, justices don’t have the same level of em­pathy for the bur­dens wo­men face that we see on the ground.”

Abor­tion-rights ad­voc­ates have al­ways picked their leg­al battles care­fully, try­ing not to el­ev­ate cases they’re likely to lose. But they’ve asked the Su­preme Court to in­ter­vene in Texas once already, un­suc­cess­fully pe­ti­tion­ing the justices to stop the law from tak­ing ef­fect be­fore a lower court ruled. The ad­voc­ates hope a second trip in front of the Court would yield bet­ter res­ults — and they have a lot to lose if it doesn’t.

“The stakes are fant­ast­ic­ally high,” said Tom Gold­stein, part­ner at Gold­stein & Rus­sell and the cofounder and pub­lish­er of SCOTUS­b­log. “A sig­nal from the Su­preme Court one way or the oth­er would be watched closely by state le­gis­latures. To the ex­tent pro-choice ad­voc­ates are look­ing for­ward, [hop­ing for a Su­preme Court rul­ing] would be mak­ing a ser­i­ous mis­take. But they may view them­selves as hav­ing no choice.”

Of course, a Su­preme Court case would also present threats for the an­ti­abor­tion move­ment: They could lose the Texas law — in whole or in part — and also oth­ers. But abor­tion-rights ad­voc­ates are risk­ing even more, leg­al ana­lysts said.

Both sides agree the case would not present a clear open­ing for the Su­preme Court to re­vis­it Roe v. Wade — the land­mark case that es­tab­lished a wo­man’s right to have an abor­tion. In­stead, the rel­ev­ant case would be Planned Par­ent­hood v. Ca­sey, in which the Court said states can im­pose lim­it­a­tions on abor­tion as long as they don’t cre­ate an “un­due bur­den” to abor­tion ac­cess.

Ca­sey was de­cided in 1992, and for two dec­ades the Court has been largely mute on what con­sti­tutes an “un­due bur­den.” The risk for abor­tion-rights ad­voc­ates, then, is that the high court could say Texas’s re­stric­tions don’t rise to that level — clear­ing the way for oth­er states to erect hurdles as high or high­er than the ones in Texas.

Those re­stric­tions have already suc­ceeded in dra­mat­ic­ally lim­it­ing ac­cess to abor­tion in Texas.

When fully im­ple­men­ted in Septem­ber, the law will ban abor­tions after the 20th week of preg­nancy, lim­it drug-in­duced abor­tions, re­quire doc­tors provid­ing abor­tions to have ad­mit­ting priv­ileges at a hos­pit­al with­in a 30-mile ra­di­us, and re­quire all abor­tions be per­formed in am­bu­lat­ory sur­gic­al cen­ters.

There were 44 abor­tion clin­ics in Texas in 2011. About 20 are open now, and be­fore the law’s fi­nal re­stric­tions take ef­fect in Septem­ber, that num­ber is set to drop to six.

Abor­tion-rights groups say the law ob­vi­ously places an “un­due bur­den” on wo­men seek­ing abor­tions, but leg­al schol­ars aren’t sure the court will see it their way.

“There is a sense that the cur­rent Su­preme Court is less sym­path­et­ic to abor­tion rights than the Court that de­cided Planned Par­ent­hood v. Ca­sey, which was clearly less sym­path­et­ic than the Court that de­cided Roe v. Wade,” said Jonath­an En­tin, an as­so­ci­ate dean at the Case West­ern Re­serve Uni­versity law school.

Justice An­thony Kennedy is the only mem­ber of the Ca­sey ma­jor­ity who’s still on the Court, and a rul­ing on Texas’s re­stric­tions would prob­ably also come down to him. Leg­al ex­perts feel con­fid­ent that the oth­er eight justices would split evenly along par­tis­an lines.

Ca­sey up­held sev­er­al abor­tion re­stric­tions, in­clud­ing a 24-hour wait­ing peri­od and in­formed-con­sent re­quire­ments. Of the re­stric­tions chal­lenged in that case, only a spous­al no­ti­fic­a­tion re­quire­ment was deemed an “un­due bur­den.”

“Wheth­er Texas will ul­ti­mately win is hard to say, but the re­stric­tions Texas has ad­op­ted are ones that might have a chance of be­ing up­held on the basis that they don’t ex­pli­citly pro­hib­it abor­tion. They im­pose a lot of re­stric­tions and reg­u­la­tions that a fair num­ber of abor­tion clin­ics can’t sat­is­fy,” En­tin said.

And the law’s sup­port­ers be­lieve the Court will land on their side.

“For those in the pub­lic square who say we shouldn’t reg­u­late abor­tion — they’re dead wrong,” said Ovid La­montague, gen­er­al coun­sel of Amer­ic­ans United for Life, a law and policy or­gan­iz­a­tion that worked on parts of the Texas le­gis­la­tion. “As cur­rent law ex­ists, states have the abil­ity — and I would say the duty — to reg­u­late abor­tion.”

Presently, states have taken vary­ing ap­proaches to re­strict­ing abor­tion, with vary­ing res­ults in the courts. The res­ult is a patch­work of in­con­sist­ent rules across the coun­try: If a lower court strikes down or up­holds a par­tic­u­lar state’s re­stric­tions, the res­ult is only bind­ing with­in that court’s jur­is­dic­tion.

But if the Su­preme Court puts its stamp of ap­prov­al on Texas’ reg­u­la­tions — or any oth­ers — it would of­fer a road map of leg­ally sound abor­tion re­stric­tions that gov­ernors and state le­gis­latures could ad­opt with little fear of see­ing their laws over­turned by the leg­al sys­tem.

Pro­pos­als sim­il­ar to Texas’s le­gis­la­tion have passed or are be­ing con­sidered in oth­er states, in­clud­ing Alabama, Wis­con­sin, Mis­sis­sippi, Louisi­ana, and Mis­souri. And even more states — Ari­zona, In­di­ana, and North Dakota, among them — have passed meas­ures crack­ing down on abor­tion in oth­er ways. Some of those ef­forts are tied up in leg­al battles, but the states’ de­cision to pur­sue them sig­nals that they might be among the first to take up their own ver­sions of Texas’ re­stric­tions.

Nev­er­the­less, abor­tion-right ad­voc­ates will con­tin­ue to press through the leg­al sys­tem.

A Dis­trict Court ruled that most of Texas’s law is largely con­sti­tu­tion­al, balk­ing only at the pro­vi­sion re­quir­ing pro­viders to have ad­mit­ting priv­ileges at a nearby hos­pit­al. Abor­tion-rights ad­voc­ates have since ap­pealed the case to the 5th Cir­cuit Court of Ap­peals, from whom all parties are still await­ing a rul­ing. But the Ap­peals Court already re­jec­ted abor­tion-rights groups’ plea to block the law from tak­ing ef­fect dur­ing the leg­al battle, a de­cisions that is seen as a sign that it will likely up­hold the re­stric­tions.

And if the 5th Cir­cuit does rule in fa­vor of the law as ex­pec­ted, that’s when abor­tion-rights sup­port­ers are ex­pec­ted to ap­peal to the Su­preme Court.

They’ve already tried their luck with the Court once, ask­ing it to block the law from tak­ing ef­fect. The Court de­clined that re­quest, but Justice Steph­en Brey­er — one of the Court’s lib­er­als — in­dic­ated that the justices would be open to con­sid­er­ing the mer­its of the Texas law.

“The un­der­ly­ing leg­al ques­tion — wheth­er the new Texas stat­ute is con­sti­tu­tion­al — is a dif­fi­cult ques­tion,” Brey­er wrote. “It is a ques­tion, I be­lieve, that at least four mem­bers of this court will wish to con­sider, ir­re­spect­ive of the Fifth Cir­cuit’s ul­ti­mate de­cision.”

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