In just two weeks, the US Supreme Court will hear arguments in a controversial abortion case that might give you an eerie feeling of deja vu because the issue isn’t new.
It’s a matter out of Louisiana that’s similar to a Texas litigation before the high court in 2016. Back then, a majority of justices ruled that a state law was unconstitutional for unduly burdening women’s access to abortions.
Texas had imposed new requirements on doctors at clinics in the name of women’s health—saying they had to have hospital admitting privileges—with the practical effect of limiting abortion availability, thereby jeopardizing women’s safety. Five justices joined in condemning the law in Whole Woman’s Health v. Hellerstedt.
“Targeted Regulation of Abortion Providers [TRAP] laws…that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection,” justice Ruth Bader Ginsburg noted in her concurrence.
Despite the straightforward guidance, however, the Fifth Circuit Court of Appeals in 2018 upheld the constitutionality of a similar law in Louisiana, asserting factual distinctions drove a conclusion that contradicted the guiding precedent. Last year, the high court agreed to review that ruling.
Some say the Fifth Circuit’s decision was specifically designed for just this purpose. That is, to prompt Supreme Court review and to test the ideological mettle of a newly reconstituted bench, now including conservative jurists Neil Gorsuch and Brett Kavanaugh.
Chief justice John Roberts, Clarence Thomas, and Samuel Alito dissented in Whole Woman’s Health, citing various reasons that the case shouldn’t have been decided on substantive grounds. Gorsuch and Kavanaugh were not yet around. But now, all five conservative justices could theoretically join to form a majority, striking the precedent that four progressive justices—Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer—voted for with “swing vote” conservative Anthony Kennedy on an eight-person bench shortly after the death of Antonin Scalia in 2016.
Kavanaugh has replaced Kennedy and certainly hasn’t got his track record as a moderate. Scalia was replaced with Gorsuch, who is, according to the Washington Post, “everything that conservatives wanted and liberals feared.” And though the two new justices have so far proven to be less predictable than pundits initially prognosticated, the timing of the Fifth Circuit’s decision defying the high court’s 2016 precedent has been viewed with deep suspicion.
“The point of this outright defiance, of course, was to require the Supreme Court to take up the case and thus allow the justices who had voted to uphold the earlier Texas law…to join the new appointees, Gorsuch and Kavanaugh, to reverse or neuter [the precedent],” mused constitutional law professor and SCOTUS commentator Garrett Epps in the Atlantic. “The barely concealed subtext was: Kennedy’s gone, we own the courts now, and all that silly ‘precedent’ is void.”
If his assessment sounds overly harsh, pessimistic, or cynical, it has some grounding. Consider a recent “friends of the court” filing signed by 207 lawmakers, which argues that the Louisiana law is constitutional and goes so far as to suggest this case presents a good opportunity to overrule a half century of precedent as well.
Gunning for #231
The politicians—39 senators and 168 representatives from 38 states—are represented by counsel at Americans United for Life, a “life-affirming” law and policy nonprofit. They think the high court should overrule the landmark 1973 case Roe v. Wade, which recognized a woman’s constitutional right to bodily privacy encompasses the ability to access a safe and legal abortion.
The lawmakers claim Roe has long sown confusion. They want the justices to “provide clarity regarding the bounds of the Government’s ability to safeguard the lives and health of their citizens.”
Roe and the subsequent cases—which use “balancing tests” to weigh burdens on women against a governmental interest in protecting health and the “potentiality of life”—are cumbersome and disposable, they argue.
This position contradicts a bedrock legal principle, stare decisis, Latin for “to stand on the decision.” Because consistency and predictability are critical to the administration of justice, courts prize precedent, believing it ensures uniform and reliable application of the law. Still, the politicians think the justices shouldn’t make too much of it. “Stare decisis is not an inexorable command, much less a constitutional principle,” the brief states. “Instead, it is a prudential and pragmatic judgment. The Court has exercised that judgment to overrule precedent in over 230 cases throughout its history.”
Gunning for number 231, the brief characterizes Roe as “radically unsettled precedent.”
That’s not in line with what the court’s own cases indicate, however.
In 1992, in Planned Parenthood v. Casey, the justices explicitly decided not to overturn Roe, explaining that it was already entrenched in American law and lives. The Casey majority wrote, “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”
That hasn’t become less so in the decades since Casey was decided.
The politicians argue, though, that two of the seven Justices who originally joined the majority in Roe subsequently repudiated it “in whole or in part.” In a footnote, the politicians’ brief cites chief justice Warren Burger’s dissent in a 1982 case about an “informed consent” law, Thornbrough v. American College of Obstericians and Gynecologists, where he does indeed wonder about the wisdom of Roe and whether the court has gone too far. Somewhat more suspect, however, is their next reference. They point to Lewis Powell’s alleged private condemnation of Roe, published in a 1994 biography.
Powell was on the record supporting Roe, and consistently. Whatever he may have once uttered in hushed tones doesn’t compare to his stated position that, having learned from the firsthand accounts of those close to him of the consequences of illegal abortion, he recognized the right to choose as inherent in the constitution. So much so that the New York Times devoted a whole subsection to the case when recalling his career upon his death in 1998. The publication called Powell a “crucial centrist,” writing:
Justice Powell was a member of the majority in Roe…and he did not waiver in his support of that principle. He wrote the Court’s opinion in a 1983 case striking down restrictions on abortion imposed by the city of Akron, Ohio. His opinion acknowledged and rebuffed the efforts of anti-abortion forces to persuade the Court to overrule Roe v. Wade. The argument was settled, Justice Powell wrote; the doctrine of adherence to precedent ”is a doctrine that demands respect in a society governed by the rule of law.”
Unlike the lawmakers who claim to be very confused about the state of the law, 15 esteemed constitutional law scholars—including Lee Bollinger of Columbia University and Laurence Tribe from Harvard—argue in their amicus brief that the Supreme Court precedent is crystal clear. Given that an almost identical Texas law was found unconstitutional for unduly burdening women just a few years ago, the justices must follow the reasoning of Whole Woman’s Health, the scholars say, lest every case that involves balancing governmental and private interests will be called into question from here on in.
“This case has implications not just for abortion but for the rule of law itself,” they explain. “Permitting lower federal courts (and by implication state courts) to circumvent those precedents of this Court with which they disagree would invite lawlessness across a wide range of subject matter areas … including the Dormant Commerce Clause, procedural due process, and voting rights.”
The academics say the Fifth Circuit’s ruling on Louisiana’s law should be “viewed with extreme skepticism.” They argue that allowing it to stand means permitting “recalcitrance dressed up as factual distinctions” to undercut the high court’s authority.
In other words, the academics warn the justices not to be fooled and not to allow themselves to be used, a sentiment those on the bench have surely considered.
Despite the high hopes many pro-life activists openly harbor that the 2020 bench will be eager to dispose of Roe and its own more recent precedent, it’s not certain. Arguably, blatant participation in the conservative campaign to reverse Roe, at this stage, would be too crude, strongly undermining the justices’ own oft-repeated rhetoric about their uniquely apolitical, nonpartisan government branch. As Epps notes in the Atlantic, the court may not want to go wild yet. “[S]ome of these justices (especially Roberts) may not be cynical enough to reverse a four-year-old precedent solely because of two new appointments,” he writes.
Arguments are on March 4 and the court should publish its decision by the term’s end in late June, thus concluding the speculation if surely not the controversy surrounding abortion laws.