This is what’s certain: A single appeals court has devastated abortion access in Texas, the nation’s second-most-populous state. With the decision on Thursday allowing Texas to enforce its omnibus abortion law in full, a total of 80% of clinics providing the procedure have closed. That leaves only eight standing and 900,000 women of reproductive age living more than 150 miles from a clinic.
“This is unprecedented, and has to be understood as a difference in kind, and not just in degree,” said Nancy Northup, head of the Center for Reproductive Rights, which represented abortion clinics before the 5th Circuit Court of Appeals.
For supporters of abortion rights, there’s ultimately only one place left to turn -- the Supreme Court. The clinics’ attorneys acknowledged as much to reporters Friday, saying an appeal, ultimately to the highest court, was assured.
That’s where the certainty ends. The central question: Will Justice Anthony Kennedy, the court's ultimate swing vote, decide Texas has gone too far in violating women’s constitutional rights? And if what has happened in Texas isn't an "undue burden" on women's ability to obtain an abortion -- the relevant legal standard -- what is?
It was Kennedy who co-wrote the decision protecting a woman’s right to have an abortion, but allowing states to regulate the procedure unless those regulations posed an "undue burden." Ironically, that decision, Planned Parenthood v. Casey, opens with “liberty finds no refuge in a jurisprudence of doubt.” But the 22 years since that decision have been full of legal and legislative “doubt” about how far states can go in restricting abortion.
Texas, along with other states across the country, has eagerly stepped into the breach -- enacting regulations on clinics allegedly to protect women's health but which experts call medically unnecessary. In Thursday's ruling, the 5th Circuit Court of Appeals didn’t just enable a set of unprecedented restrictions -- it all but dared the Supreme Court to step in.
“In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” wrote George W. Bush appointee Jennifer Elrod in the decision. She added, in a quote that seemed designed to highlight the split in the lower courts that forms a common rationale for the Supreme Court to take a case, “We agree with Plaintiffs that some circuits have used the balancing test to enjoin abortion regulations; other circuits—including ours—have not.”
He took the move as proof that Elrod and her fellow anti-abortion judge, Jerry Smith, “are very confident the Supreme Court will take their side if the justices agree to to hear this case.”
If Elrod is right, and Justice Anthony Kennedy would provide a fifth vote in favor of upholding the Texas law, the ultimate impact would be decimating abortion access across the country. Courts have already blocked similar laws in Alabama, Wisconsin, and Mississippi, with challenges in Louisiana and Oklahoma awaiting replies. For millions of women living in those states and the ones that might copy them, it would amount to a ban on abortion in all but name.
Many court watchers are pessimistic about Kennedy's abortion votes -- as Drexel University law professor David S. Cohen has pointed out, since Casey the Justice has never met an abortion restriction he didn't like. But not everyone agrees with Elrod's read of the field.
"I think it’s very unclear where he’s going to come out against this," said Priscilla Smith, a senior fellow at Yale Law School who argued the last major Supreme Court abortion case. (Kennedy voted against abortion rights in that case, with a vengeance.)
"I think he cares about the bottom line: Can women actually get abortions?" Smith said. "I think he’s going to want to see the proof and want to know whether it’s going to make it safer or whether it’s a specious requirement.”
Time will tell whether Elrod is correctly predicting Kennedy’s vote, but she wasn’t off in claiming the 5th Circuit had gone its own way.
The decision is a radical departure in part because it refused to even consider whether Texas had legitimate medical or public health evidence on its side. (Perhaps that’s because the entire medical establishment says it doesn’t.) In December, Judge Richard Posner took a different view when he wrote for the Seventh Circuit about a similar Wisconsin law: “The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” He found the medical grounds to be feeble indeed.
By contrast, as Jennifer Dalven of the ACLU's Reproductive Freedom Project pointed out, the 5th Circuit in the Texas case set up the following standard for evaluating an abortion law: “If you can say it with a straight face, is basically what they say, without looking behind it at all, that’s good enough for us. That’s quite shocking as a legal matter, and it’s devastating in terms of its toll on real women and families.”
Using the 5th Circuit standard, Smith said, a state could "require that every abortion take place in a castle made of gold" without anyone calling it unreasonable. She added, “The 5th Circuit is acting like a very activist court, in an attempt to take all the teeth out of Casey.”
The court also shrugged off the burden on women as not significant enough, despite the fact that nearly a million women will be affected.
“One must wonder at this point what would count as a substantial obstacle in the court’s eyes,” said Stephanie Toti, an attorney with the Center for Reproductive Rights.
The practical impact of all of these legal standards is that, barring an emergency stay from the Supreme Court -- one it declined to give in an earlier round of challenges to this law -- many clinics are likely to permanently close even if the high court eventually finds the 5th Circuit was wrong and tells them they can reopen. Licenses expire, as do leases. Litigation is expensive enough. That may mean Texas will get its wish of standing in the way of women who seek abortions no matter what the Court decides.
There is another point of clarity, said Northup: “It is going to be a showdown we haven’t seen in decades.”