This article has been updated.
The Supreme Court has declined to hear the case of a North Carolina abortion law, meaning that abortion patients in that state won't be forced to view an ultrasound beforehand and doctors won't be required to describe it to them. The federal appeals court had found that North Carolina's law violated the First Amendment rights of both doctor and patient. With the Supreme Court's action today, from which Justice Scalia dissented without further comment, that conclusion stands. Advocates for abortion rights cheered the move.
But this story is far from over. After several meetings about it, the court hasn't said whether it will take up the constitutionality of a Mississippi abortion law that threatens to close the last clinic in the state. It may still decide to hear it. It may also take up a Texas abortion law that has decimated clinics there. Depending on how the court moves forward, it’s no exaggeration to say the legal abortion access of millions of American women hangs in the balance. If the court does choose to take up the issue, which it has avoided since 2007, an opinion would come down mere months before the 2016 presidential election.
The ultimate question is how far swing Justice Anthony Kennedy, who has previously declined to overturn the landmark abortion case Roe v. Wade, is willing to let anti-abortion state governments go in restricting women’s access.
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The justices meet privately, in what is known as a conference, to vote on whether to take a case. They have already conferenced the Mississippi case three times, including last Thursday, the same day the justices discussed the North Carolina case for the first time. The Mississippi law at issue requires all doctors to have local hospital admitting privileges, which would shut down the state’s last abortion clinic. The 5th Circuit Court of Appeals narrowly found that the state could not just tell women to go to another state for their constitutional rights, and Mississippi appealed.
By July 1, the court is expected to receive an emergency request from abortion clinics in Texas to put on hold a state law requiring that all abortions take place in mini-hospitals. Last week, the 5th Circuit signed off on the law, which, combined with a prior hospital admitting privileges requirement, would leave less than 10 clinics where there were once around 40. Nearly 1 million women of reproductive age would live more than 150 miles from an abortion clinic, and other red states would likely follow in Texas’s footsteps.
Advocates for abortion rights have been hoping that the Supreme Court steers clear entirely of the Mississippi and North Carolina cases. Said Julie Rikelman, litigation director at the Center for Reproductive Rights, which is involved in all three cases,“We won both of the cases, and they’re both good decisions." In Texas, legally speaking, things can’t get any worse for abortion access. That's why the clinics want the Supreme Court to step in, first to block the law from going into effect and then to fully consider its constitutionality.
“We’re hopeful that even if the 5th Circuit doesn’t stay the order,” said Rikelman, allowing the clinic regulations to officially go into effect, “the Supreme Court will.” If the highest court lets Texas enforce the law while the case goes through the normal, months-long processes, she said, many clinics wouldn’t be able to reopen by the time it rules.
For the past five years, states and judges hostile to abortion have been engaged in a kind of ongoing dare aimed at Justice Kennedy. But no major opinion has been as flagrant as the one issued by a three-judge panel of the 5th Circuit Court of Appeals a week ago, giving the green light to the Texas law.
Of the tangled web of abortion restrictions, which has thickened since Republicans took over many statehouses in 2010, the laws with the most impact are aimed at the clinics themselves. They’re known in the abortion rights community as “TRAP” laws, which stands for “targeted regulation of abortion providers” and also indicates the desired effect on clinics.
Such laws, said Yale law school professor Reva Siegel at an American Constitution Society panel on abortion rights Friday, “are destroying what remains of the infrastructure through which women are able to exercise the right of choice.”
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Some commentators blame the Supreme Court’s last major abortion case, from 1992, Planned Parenthood v. Casey, for crafting a standard so broad and vague that many women have fallen right through it. At the time, people on either side of the issue believed the court was close to overturning Roe v. Wade entirely. Instead, three justices appointed by Republicans – Sandra Day O’Connor, David Souter and Kennedy -- came together to uphold the essential right to an abortion but give states latitude to regulate it unless such laws put an “undue burden” on a woman. Only Kennedy is still on the court, and O’Connor’s replacement, Justice Samuel Alito, has never met an abortion restriction he didn’t like.
According to Casey, “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” But since then, lower court judges have interpreted “undue burden” to mean anything they want, and no one has given anti-abortion state governments a longer leash than the 5th Circuit, which oversees Texas, Mississippi and Louisiana.
“More than half the state’s clinics are going to shut down,” said Rikelman of the Texas law. “How can that not be a substantial obstacle?”
The 5th Circuit took at face value Texas’s stated justification for the law that it furthered women’s health, despite major medical association’s assertions that it actually harmed women. Both the 7th and 9th Circuit have considered whether laws are medically necessary – or unnecessary, as it happened -- in finding that they did in fact impose an undue burden. “The feebler the medical grounds, the likelier the burden, even if slight, to be undue,” wrote federal Judge Richard Posner of the 7th Circuit in striking down a Wisconsin restriction. In a previous ruling on the Texas abortion law, the 5th Circuit said pointedly, "In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.”
The conservative judges of the 5th Circuit, in their most ruling on the Texas law last Tuesday, were also unimpressed that the Texas law would predominantly harm low-income women, quoting the Supreme Court decision in 1980, Harris v. McRae, upholding a ban on Medicaid funds for abortion: “The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.”
“The 5th Circuit is just inviting the Supreme Court to abandon the law it put there,” Siegel said. “If it abandons [the precedent set by Casey], it is acting in derogation of women’s dignity.” Dignity is a word Kennedy often uses.
Abortion rights advocates have been reluctant to test Kennedy, but it’s clear they feel things have gone too far. “What we have now is not criminal prohibitions,” said Melissa Murray, a law professor at the University of California at Berkeley, at the American Constitution Society panel. “Instead, we have a web of laws that together have the force of a criminal prohibition.”
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Kennedy, along with whichever four justices he decides to join, will have an opportunity to clarify once and for all what an “undue burden” means. “We want them to confirm that the undue burden standard is a meaningful standard, with teeth, that the lower courts have misapplied,” Rikelman said. “That you can’t restrict abortion on a pretext; that you can’t relegate women to second-class status through abortion restrictions; and that closing down clinics in a state for no medical reason is an undue burden.”
If the Supreme Court does take an abortion case this term, it is likely to be decided at the end of the court's next term in June, when all the momentous opinions come down. That means a decision less than six months before the next presidential election. Whichever way it comes down, it is likely to help the candidates draw a sharp contrast between their positions on reproductive rights. It will also highlight the fact that the next president could appoint up to three Supreme Court justices.