Since 1973, many pro-choice activists have been wedded to a romantic vision of federal judges as the ultimate protectors of women’s rights. But that dream hasn’t aligned with reality. In fact, the Supreme Court has refused to treat reproductive freedom like other fundamental rights since the late ’80s, shifting the nation’s most contentious debate to the rough and tumble of state politics. Opponents of reproductive rights have taken advantage of that retreat by electing anti-abortion politicians who, in turn, have pressed for ever tighter restrictions.
The Supreme Court’s refinement of the landmark Roe v. Wade decision has paved the way for opponents of abortion to block a woman’s access to care at every turn. They’ve enacted waiting periods (from 24 to 72 hours), mandatory information sessions, bans on medical abortion, prohibition of abortion based on fetal anomaly or disability, invasive procedures like trans-vaginal ultrasounds, and disturbing laws like Indiana’s requirement that fetal remains be cremated or buried.
And just this month, the latest and most egregious bill comes from Tennessee where a House committee voted 15-4 in favor of a law which bans nearly all abortions the moment a fetal heartbeat is detected. That’s at about six weeks, which is around the time many women realize that they’re pregnant.
The Supreme Court has turned a blind eye to these restrictive laws, using a vague legal test to judge a law’s constitutionality: Does the law impose an “undue burden” on a woman’s right to end her pregnancy before a fetus is viable or put her life or health at risk after that point?
But with Brett Kavanaugh’s confirmation, the Roberts Court is now ready to test the limits of Roe v. Wade once again. That’s why all eyes will be on the next term when a Louisiana law will come before the Supreme Court.
THE 2014 LOUISIANA law is merely another gambit in the anti-abortion activist playbook, which often calls for thwarting a pregnant woman’s access to care. Eventually, the hope is that she will give up and carry the baby to term, whether or not she has the emotional and financial resources to care for a child. These tactics are especially burdensome on the poor because those most affected by these laws often cannot travel across state lines for help or make multiple trips to receive the procedure.
Slyly billed as a women’s health initiative, the Louisiana law requires every doctor who performs abortions to have “active admitting privileges” at a hospital within 30 miles of a clinic. (Note that legal abortions have few health risks; complications are almost unknown.) The legislators knew this law would derail providers, and sure enough, hospital administrators impeded qualified physicians at every turn. When a longtime abortion doctor applied for privileges at his local hospital, the hospital administrator informed him that it was too “controversial” for the institution to be associated with his practice; instead, the doctor’s request had to first be vetted by the hospital’s “lobbyists.” Although he eventually received limited privileges with conditions, most Louisiana abortion providers never heard back from the hospitals to which they applied. Unable to comply with the new law, the three women’s health clinics left in the state are now at risk of closing.
This result came as no surprise in Missouri where a similar law led to multiple clinic closings. Now only a single clinic serves the entire state, forcing women to travel long distances, in some cases hundreds of miles, to obtain an abortion.
The federal district judge overseeing a challenge to the Louisiana law ruled that because the hospital privileges requirements would significantly reduce the number of clinics and doctors who could legally provide care, it created a major hardship for its most impoverished citizens. (The state already required its citizens to make two separate trips to their providers: the first to undergo mandatory counseling and an ultrasound; the second, only after a 24-hour waiting period, to receive the actual procedure.)
In contrast, a 2-1 decision in the federal appeals court sitting in New Orleans accepted at face value the state’s claim that the privileges requirement promoted women’s health and that four of the five doctors had not made enough efforts to obtain privileges.
That’s when the US Supreme Court stepped in. Chief Justice John Roberts surprised many conservatives February 7 when he joined the Supreme Court’s four liberals to temporarily block Louisiana’s law, finding that the challengers would experience a hardship if the law were enforced and that they had shown “a fair prospect” of victory.
WHILE ABORTION RIGHTS advocates breathed a collective sigh of relief, this last-minute reprieve should not be seen as a bellwether of how the Supreme Court will rule on abortion rights in the future.
Reproductive freedom advocates lost support when Justice Anthony Kennedy retired in July 2018. He helped save Roe v. Wade in 1992 by co-authoring the plurality opinion in Casey v Planned Parenthood, but also was responsible for watering down legal protections.
And with the appointment of Kavanaugh to his seat, pro-choice advocates have more reason to worry. As a federal appeals court judge, Kavanaugh had voted against a pregnant teenage immigrant in federal custody who sought an abortion, using popular anti-abortion rhetoric in accusing his colleagues of creating a right to “immediate abortion on demand.” Predictably, Kavanaugh also voted against a stay in the Louisiana case. He wanted to uphold the hospital privileges law, even though it didn’t seem supported by medical necessity, and force doctors to try harder to comply with it even when it seemed futile.
Many freedom of choice advocates hope that Roberts will rule in their favor on the case’s merits. Indeed, Roberts has shown that he cares a great deal about the institutional reputation of the federal judiciary. When faced with the prospect of striking down the Affordable Care Act in 2012, for example, he was reportedly troubled as he tried the ruling on for size, because such a decision would involve striking down a president’s signature accomplishment, making the Court appear overtly political. He worried that such a dynamic might erode the Court’s prestige, which depends entirely on its power to persuade.
But make no mistake: Roberts is no closet defender of reproductive freedom. He has derided the notion of privacy as a “so-called right,” and as a lawyer argued that Roe was “a tragedy.” In fact, he’s never met an abortion regulation that he thinks runs afoul of the Constitution. If he follows up his vote to block the Louisiana law with a vote to strike it down next term, it would mark the first time he actually enforces Roe.
In fact, it’s likely that Roberts will try to vote with conservatives. To do so, he will have to grapple with Whole Woman’s Health v. Hellerstedt, a 2016 Supreme Court decision that struck down a remarkably similar Texas law requiring abortion providers to have hospital privileges. If there’s no way to distinguish that precedent with a straight face, then his desire to avoid thrusting the Supreme Court into national politics might nudge him to join, grudgingly, a narrow ruling that invalidates the Louisiana law.
Even if Justice Roberts were to help strike down Louisiana’s law, it would not augur any major shift on the Court’s thinking about a person’s constitutional right to terminate a pregnancy, which can already be restricted in many ways both large and small. Nor would it signal newfound love for pro-choice rights on the part of Roberts. The law’s challengers would only win because Roberts could find no daylight between the Texas and Louisiana statutes.
Some federal judges will surely take advantage of the solidly conservative bloc on the high court by becoming more ideologically aggressive, teeing up lawsuits to further narrow Roe or overrule it completely. That’s what happened in the Louisiana case, as two federal judges on the appeals panel engaged in major contortions to rewrite the findings made by the trial judge — a highly unusual move.
WHERE DOES THIS leave Americans who believe that reproductive freedom is about liberty and equality? There’s a reason abortion foes have turned to the states; choice advocates should do the same.
State protections in general are more secure because state courts are the final arbiter of state law. They can’t be overturned by the Supreme Court unless the law or constitution directly conflicts with federal law. Further, states can grant their citizens more rights than the US Constitution does. Many states, for example, have read their constitutions more broadly to protect their residents’ right to free expression, religious liberty, and against unreasonable searches and seizures.
When states protect reproductive rights, they are almost certainly acting in accordance with the wishes of constituents. There are many more democratic mechanisms to rein in runaway judges at the state level than at the federal level, where impeachment is the only remedy if a federal judge with life tenure goes too far. In all but two of the states that protect reproductive rights, justices must stand for reelection; a governor, too, is much easier to dislodge than a president; and that’s all on top of impeachment and judicial qualification commissions as mechanisms to remove a state court judge.
This local approach has already led to some surprising and enduring pro-choice successes. Overall, 12 states currently protect reproductive rights under their own state constitutions, including Massachusetts, Florida, Iowa, Montana, and New Mexico. They’ve done so by declaring a person’s “right to reproductive choice” as “necessary for . . . civilized life and ordered liberty.” In Montana, the high court called the right to seek such services an essential part of “a woman’s moral right and moral responsibility.”
Most states protect reproductive rights by relying on concepts of privacy built into their constitutions, something that the US Constitution lacks. Ten states — Alaska, Arizona, California, Hawaii, Illinois, Florida, Montana, Louisiana, South Carolina, Washington — contain a privacy provision, though some have not yet applied such language to protect reproductive rights. Fourteen more have ruled that their constitutions imply a right to privacy even in the absence of clear language. Minnesota’s Supreme Court extended an implied right to privacy to encompass abortion in 1995, saying, “We can think of few decisions more intimate, personal, and profound than a woman’s decision between childbirth and abortion.” Perhaps even more surprising, Tennessee’s Supreme Court did the same in 2000, holding that the right to choose is an “inherently intimate and personal enterprise.”
Of the states that guarantee reproductive freedom, seven — Alaska, California, Florida, Minnesota, New Jersey, New York, and Tennessee — view choice as a fundamental right, and have even overturned restrictions on public funding of abortions, two things the US Supreme Court has staunchly refused to do.
A few states have even begun to develop the idea that abortion restrictions discriminate against women on the basis of sex. It’s important to note that the US Constitution contains no explicit guarantee of sex equality beyond voting, though it does promise “equal protection of the laws.” An Equal Rights Amendment to the US constitution was proposed in 1972, and thus far has been ratified by 37 states. In 2019, there has been a renewed push to ratify the ERA, so it’s worth repeating the actual language of that amendment here: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.”
This simple call for sex equality at the national level has been opposed by Americans who want to outlaw abortion, as well as slow the recognition of rights for sexual minorities. But this hasn’t stopped voters in a number of states from pushing equality-based arguments to ensure reproductive rights.
Indeed, state-level equal rights provisions have been potent instruments in protecting reproductive freedoms. In 1998, a unanimous New Mexico Supreme Court ruled that a law restricting public funding of abortion violated the state’s ERA. In New Jersey, the highest state court has similarly held that a law that banned public funding of abortion unless the woman’s life was endangered was presumptively unconstitutional because it treated different classes of women unequally.
A Vermont case from 1972 overturned a law that prohibited the help of a doctor to secure an abortion to be “unreasonable, inappropriate, oppressive or discriminatory.” At the end of January, Delaware enacted an ERA. There is even renewed support for an ERA in Virginia, where the measure has passed the Senate on multiple occasions but for the moment remains stuck in the House.
State legislators have also combed their books for old laws that criminalize reproductive decisions. Recently, Massachusetts, Delaware, and New York have repealed such laws ahead of any Supreme Court decisions. Protecting funding that will treat poor men and women more equitably when it comes to necessary medical procedures — including abortion — is another path. In Texas, abortion foes have skillfully wielded funding to deny providers the resources they need.
Several states, including Arizona and Colorado, have liberty of conscience provisions, which offer another path for freedom of choice advocates. These provisions use the idea that terminating a pregnancy is, in certain circumstances, an exercise of faith. Though less developed to date, liberty of conscious provisions offer another way to re-characterize and defend a woman’s interests in equality and control over her own body.
Even in states where voters are generally opposed to reproductive freedom, winning a key office or two can make a huge difference. Two offices critical to the protection of rights in each state are the governor and attorney general. A governor can veto legislation that is hostile to abortion rights, while an attorney general can refuse to enforce a law that is believed to be unconstitutional. In 2018, Ohio Governor John Kasich, a moderate Republican, vetoed a bill that would have prohibited abortion as soon as a heartbeat could be detected. A year earlier, Pennsylvania Governor Tom Wolf vetoed a bill that would have outlawed abortion after 20 weeks and banned the most common procedure used during second-trimester abortions.
Last year, three Indiana prosecutors joined forces to announce that they would refuse to enforce a law that required doctors to report any “abortion complications” to the state health department, saying it would dissuade women from exercising their constitutional rights. While an intriguing exercise of prosecutorial discretion to safeguard the right to choose, their resistance remained limited because they couldn’t secure the support of the state’s attorney general, who could have done more to block an abortion regulation that goes too far if he had been sympathetic.
DESPITE THE MORAL complexity of the abortion issue, polls consistently show that reproductive freedom is valued by the majority of Americans. But even when a national politician is generally sympathetic to these rights, he or she usually avoids taking a clear stand on such a polarizing issue. It’s even harder to get a national figure to focus on the needs of poor people in difficult circumstances, or the plight of their caregivers. That’s why this issue will continue to play out at the state and municipal levels.
Fortunately, even as the nation’s highest court moves to restrict citizens’ freedoms, Americans have plenty of power to secure liberty and equal healthcare for everyone.
Robert L. Tsai is Professor of Law at American University. His new book, Practical Equality: Forging Justice in a Divided Nation (W.W. Norton 2019) is now in bookstores.