Law & the Courts

Will the Justices Be Bold on Abortion?

(Leah Millis/Reuters)
The Supreme Court will hear the most important pro-life case in a generation

I  remember June 29, 1992, all too well. That was the day the Supreme Court issued its decision in Planned Parenthood v. Casey. In that case, a court composed of a majority of Republican appointees not only reaffirmed the central holding of Roe v. Wade, it articulated a version of “liberty” that rendered the definition of personhood nearly entirely individualized and subjective — science be damned. The plurality opinion declared, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

The unborn child never gets the chance to define anything. The “attributes of personhood” are defined for it, sometimes by the ultimate dehumanizing instrument of a doctor’s dismembering vacuum tube.

But there’s something else I remember from that day. Pro-life activists were bereft when the Court failed to overturn Roe. Yet I knew many pro-choice feminists who were angry as well. Why? Though the Court didn’t eliminate the judge-manufactured constitutional right to an abortion, it clarified the judicial test for determining whether state regulations were constitutionally permissible. The plurality stated that “only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”

Pro-choice activists understood that the phrase “undue burden” was malleable. It was not self-defining. There was room for regulation, and in the years since Casey the number of pro-life regulations exploded across the United States. At the same time, the abortion rate fell precipitously, and the combination of decreased demand and increased regulation meant that in some states the number of abortion clinics shrank to a mere handful, sometimes to a single clinic in an entire state.

Yet even as regulations passed and clinics closed, Justice Anthony Kennedy stood as a firewall. As one of the architects of Casey, he would never overrule Roe. And his abortion jurisprudence, while “moderate” (he did, after all, vote with the majority to uphold George W. Bush’s partial-birth-abortion ban), was protective enough of abortion rights that he joined with progressives, in a case called Whole Women’s Health, to strike down even such a modest state restriction as a Texas law requiring doctors who perform abortions to hold admitting privileges at a hospital located within 30 miles of an abortion facility.

But now Justice Kennedy has retired. Not one of the justices who authored the plurality opinion in Casey are still on the Court. And there is now a clear opportunity for the Court to depart from even its recent jurisprudence and chart a new judicial course.

Today, the Supreme Court accepted review in a Louisiana abortion case called June Medical Services v. Gee. The decision was hardly surprising. In 2018, the Fifth Circuit Court of Appeals upheld a Louisiana admitting-privileges law that is remarkably similar to the Texas statute the Supreme Court struck down in 2016. The Fifth Circuit panel cited factual differences between the two cases, and in theory the Court could have permitted the Louisiana statute to go into effect without hearing an appeal, but in February it granted Louisiana’s request for a stay of enforcement pending its appeal to SCOTUS, and now it has decided to hear the case on the merits.

So, what does this mean? Simply put, the Court will decide the most consequential abortion case in a generation. First, if it overturns the Fifth Circuit and reaffirms the 2016 Texas precedent, then the message is clear — the Court is not substantially different. Even though he’s retired, the Court will still be Kennedy’s Court, and stare decisis will continue to trump the text, history, and clear meaning of the Constitution.

Let’s put it this way: It will be immensely important (in all the worst ways) if the Court overturns the Louisiana law and upholds Whole Women’s Health. If it rules for the state, then the importance of the decision will depend greatly on the breadth of the opinion.

An opinion focused almost exclusively on factual differences between Texas and Louisiana that upholds the Louisiana law while still blocking Texas would indicate that the Court may have little appetite for substantially rocking the precedential boat. By contrast, an opinion that actually reverses Whole Women’s Health would demonstrate that the Court is willing to act with at least some degree of boldness and would greatly encourage state legislators who’ve passed hundreds of new pro-life laws in the past decade.

What is most likely to happen? Don’t count on any language that casts doubt on the core holding in Roe or Casey. Louisiana is mainly fighting to keep its law alive, not to remake abortion jurisprudence in America, and the Court doesn’t often give a litigant more than it asks for. And while pro-life Americans can be hopeful for a good outcome, I’d caution against outright optimism. When the Court blocked enforcement of Louisiana’s law in February, it had to find a “significant possibility” that it would reverse the Fifth Circuit. While hardly the death knell for the case, the fact that the Court reached that conclusion is disturbing.

No matter what happens, however, one thing is clear: For the abortion jurisprudence of a post-Kennedy court, the age of speculation is about to end. The age of analysis will soon begin.

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