Cross-posted on the Huffington Post
“Read the small print” is sound advice before buying car insurance or signing for a reverse mortgage touted in a late-night infomercial. It is also the right approach for making sense of Whole Woman’s Health v. Hellerstedt, the momentous abortion rights case from Texas now before the Supreme Court.
The outcome will help determine whether safe and legal abortion care will be available to poor and disadvantaged women in large swathes of the country and could shape the real world contours of women’s reproductive freedom for years to come. But it is apparent from the background of this legal clash (pertinent small print, if you will) that the case implicates a principle that transcends the immediate abortion controversy, one central to the rule of law—namely, the truth and integrity of judicial decision-making. Including, I’d add, by the Supreme Court itself.
Without rehashing the whole saga, the case involves a pair of restrictions Texas enacted in 2013 under a phony guise of protecting women’s health but that everyone knew were conceived to shut down most of the state’s clinics that perform abortions. Indeed, at times, Republican politicians behind the hoax publicly bragged about it, straying from the clever cover mantra that the legislation was about women’s health and safety.
One of the restrictions in question mandates that all physicians performing abortions obtain admitting privileges at a nearby hospital, which has no bearing on patient safety and is typically impossible for political or bureaucratic reasons unrelated to medical competence. The second restriction imposes prohibitively expensive and medically unnecessary surgical center standards on abortion providers—even clinics that perform only nonsurgical medication abortions and the safest early-stage procedure. These standards, tellingly, do not apply to facilities performing colonoscopies or liposuction, say, or other common procedures with much higher complication rates than abortion.
In the federal appeals court ruling before the justices, a three-judge panel of the United States Court of Appeals for the Fifth Circuit, comprised entirely of George W. Bush appointees, refused to subject to meaningful review the state’s false assertion that the two challenged restrictions advance women’s health, or to realistically assess the true extent of their harm to women before concluding, unpersuasively, that they did not impose an “undue burden” on abortion rights—the prevailing standard for nearly a quarter of a century for assessing the validity of abortion limits under the Supreme Court’s 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey.
On the merits, both the panel’s process and bottom line are deeply flawed. The tribunal’s incurious ultra-deference to the state’s weak health-promotion claim directly flouted the Casey framework, which, as a group of prominent legal scholars note in a clarifying amicus brief, anticipates the risk that a state like Texas might disingenuously invoke women’s health to justify assaulting women’s dignity and autonomy interests. Casey, the law professors explain, “calls for searching judicial examination of both the purpose and effect of a health-justified abortion regulation, in order to identify pretext and to ensure that the burdens imposed … are not disproportionate as compared to their health benefits.” Precisely, in other words, the inquiry the Fifth Circuit declined to undertake.
Instead of engaging in a careful parsing of the purpose and effect of the “health” regulations, as faithful adherence to Casey requires, and acknowledging the overwhelming medical consensus that neither of the contested regulations promote women’s health, the Fifth Circuit said “any conceivable rationale” for the law was sufficient. Really? Such a lax standard of review doesn’t fly under Casey and, more generally, mocks the essential role of an independent judiciary in checking legislative and executive overreach that impinges on a fundamental constitutional right.
The Fifth Circuit panel actually criticized Judge Lee Yeakel, the federal district judge (and another appointee of President George W. Bush), who took the trouble to conduct a four-day bench trial before issuing a ruling—his second on the matter—finding both restrictions imposed an undue burden on solid grounds that the appeals panel rejected. In particular, he called out the absence of a credible medical justification.
But back to Wednesday’s Supreme Court showdown and the lurking court integrity issue.
Putting aside the galling irony of inflicting major harm to women’s health under a specious banner of health protection, a Supreme Court resolution letting the Fifth Circuit ruling stand—whether by majority vote or 4 – 4 tie—would send a terrible message of ideology and the hard-right Republican agenda triumphing over precedent and evidence—a.k.a., the truth—at the nation’s highest court. It would make the Supreme Court complicit in a well-known fraud committed by Texas Republicans, and copied by other Republican-led states, to use bogus “health” concerns to force extensive abortion clinic closures long sought by anti-abortion forces.
Many court observers forecast that Justice Anthony Kennedy, the court’s swing justice and co-author of the Casey ruling, will provide the fifth vote for overturning the Fifth Circuit panel. Here’s hoping that happens. But what about Chief Justice Roberts? He may be no friend of abortion rights—and his vote along with Justices Thomas and Alito and the late Justice Scalia to deny a stay of the panel’s clinic-closing ruling pending appeal is not encouraging. But as Mr. Roberts should see, buying into a lower appellate court’s skewed approach to judging and a dishonest Republican ploy to defeat women’s freedom to make their own childbearing decisions is no way to build trust in his leadership or institution.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.