LAW NOVEMBER 5, 2013
On Friday, about one-third of the abortion clinics in Texas started calling women to cancel long-standing appointments and turning away panicked, crying patients who showed up at the door. Abortion rights advocates had breathed a sigh of relief at the beginning of the week when a district judge blocked part of Texas's controversial new anti-abortion law from going into effect, but the Fifth Circuit lifted the injunction three days later, enacting the law on November 1—at least until it hears arguments this January. The moment the law took effect, in particular the often unfulfillable requirement that doctors who perform abortions get admitting privileges at nearby hospitals, the abortion landscape in Texas drastically changed.
With their case, Planned Parenthood v. Abbott (jointly filed by Planned Parenthood, the ACLU, the Center for Reproductive Rights, and a Texas firm on behalf of a number of Texas women's health clinics), languishing in the Fifth Circuit until 2014, abortion-rights advocates resorted to the only court that could put the injunction back in place: the Supreme Court, which they petitioned for "emergency relief" on Monday. For now, the Supreme Court's only decision is whether to reinstate the injunction until the case is decided (and that will be up to the zealously anti-abortion Justice Antonin Scalia, since he oversees the Fifth Circuit and any emergency petitions that arise from it). But observers are already wondering if the Texas law could find its way back to the nation’s highest court, to be debated in full there, after the Fifth Circuit rules. And that’s a nerve-wracking prospect for women’s advocates, since the court has narrowed abortion rights in one decision after another in the 40 years since Roe v. Wade.
As the Supreme Court has edged to the right over the past decade, pro-choice litigators have had to weigh the risks of each case they bring or appeal. “There’s always a calculus involved,” says Caitlin Borgmann, a professor at CUNY School of Law who was previously an attorney at the American Civil Liberties Union. “Whether you let a bad decision sit there that’s going to affect women, or take it up to court and get a bad decision that’s going to affect even more women,” there's no safe route. When it comes to the Texas law, which could keep up to 20,000 women a year from accessing safe and legal abortions, the human stakes might be too high not to appeal, especially if the Fifth Circuit sets a bad precedent that could encourage the other conservative, southern states it oversees.
The attorneys in Planned Parenthood v. Abbott hope this law’s sweeping effects could make it a good case to throw their weight behind. “If the right to abortion means anything, it has to mean that this law is unconstitutional,” said Brigitte Amiri, senior staff attorney at the ACLU. “I think regardless of the make-up of the court, this is such a stark example of an unconstitutional law because we can see the impact it is having.” According to Supreme Court precedent, laws that place an "undue burden" on women seeking abortions are unconstitutional, and the Texas law would impede tens of thousands of women from accessing the procedure without making abortion measurably safer in any way.
Amiri pointed out that although the Supreme Court, and in particular the swing vote Justice Anthony Kennedy, has upheld limitations on the types of abortion available as well as hurdles that make the procedure more time-consuming and expensive, it has never been faced with a law that so obviously puts legal abortion out of reach for many women. That said, the Supreme Court has not decided a case in favor of abortion rights since Stenberg v. Carhart upheld the legality of a particular late-term abortion method in 2000—and it reversed that decision in Gonzalez v. Carhart and Gonzalez v. Planned Parenthood Federation of America in 2007, when the composition of justices was for more similar to what it is now.
Even if the losing party does decide to appeal the Texas case after the Fifth Circuit decision next year, the Supreme Court only hears about one percent of the cases put before it. But it’s looking increasingly likely that the court will eventually weigh in on whether abortion providers can be required to have admitting privileges—a rule that has proved highly effective at shutting down clinics, since hospitals in conservative states often won’t agree to that relationship. The Texas case is one of five that are currently wending their way through the court system, and so far, the Fifth Circuit is the only body that has looked favorably on the measure; the others have all been blocked by injunctions. If the Fifth Circuit sides with the state of Texas, it could set up a split with another circuit if the other cases—none of which has climbed higher than district court yet—label the same type of law unconstitutional in other parts of the country. The Supreme Court often accepts cases to decide, or even prevent, these instances of warring precedents. (A Fifth Circuit decision could also have major implications since another admitting privileges case falls in its territory, in Mississippi, where the law would shut down the state’s last clinic.)
Admitting privileges are only one genre of abortion restriction among many that the court could eventually decide to arbitrate. Another candidate for the court's attention, and perhaps for an eventual circuit split, is the 20-week ban, which blocks abortion several weeks before viability—the cutoff established by Roe v. Wade—using pseudoscientific arguments about fetuses’ ability to feel pain. MSNBC’s Irin Carmon has written about how these “fetal pain” laws, of which there are currently three at issue in lower courts, “are meant to offer as many routes as possible for the Justices to change their minds—or really, just one Justice, Anthony Kennedy.” Some abortion advocates think Kennedy would not uphold a law that so blatantly tampers with Roe, but others fear the 20-week bans’ veneer of moderation could appear to Kennedy like another opportunity to split the proverbial difference. In their effort to beat back 20-week bans, abortion rights advocates have been particularly careful to pick the right cases; The New Republic wrote last winter about an Idaho case that national groups rebuffed because they were concerned about the grisly details.
In the Texas case, in the best possible scenario, the Supreme Court could clarify what constitutes an “undue burden” for women seeking abortions. This is the standard the court set up in its 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey to measure whether state restrictions were constitutional, and since then anti-abortion lawmakers have stretched it farther with every passing year. Not only has the “undue burden” test allowed for admitting privileges legislation, it has failed to prevent mandatory ultrasounds, 24-hour waiting periods, and ruinously costly requirements that clinics be built like facilities where complex surgeries are performed. The time is ripe for a reevaluation of what it means for a law to be “burdensome”—if it shuts down one-third of a state’s clinics, does that count?—and what could make that burden “undue”—if a law’s authors say its sole purpose is to end abortion, as lawmakers have in Texas, how is the burden to women legally justified?
“But is that something that should be addressed right now?” Elizabeth Nash, a policy expert at the Guttmacher Institute, asked me when I posed this optimistic scenario Monday. “We have a more conservative court. It’s very tricky.”
Ultimately, if the Texas abortion providers lose their case in the Fifth Circuit, they won’t be able to predict how an appeal to the Supreme Court would fare. “Some of the abstract and theoretical questions about courts’ leanings and what they might do in some ways are trumped by the real world practice of law,” Amiri says. “You have an obligation to your client to do everything possible, and that’s how we felt in Texas: Even if it might not work—and you never know what will—you had to try.”