Monday, October 25, 2021
On Friday, the Supreme Court agreed to hear limited arguments on November 1st regarding Texas's S.B. 8. The issue before the Court is framed as:
May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.
Justice Sotomayor powerfully wrote concurring in part and dissenting in part (citations omitted):
I cannot capture the totality of this harm in these pages. . . . [T]he State (empowered by this Court’s inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State’s gambit has worked. The impact is catastrophic.
These ruinous effects were foreseeable and intentional. Were there any doubt, proponents of S. B. 8 have boasted in this very litigation that “Texas has boxed out the judiciary” and crowed that “[a]bortion . . . is a court-invented right that may not even have majority support on the cur- rent Supreme Court.”
There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative re- lief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.
There are women in Texas who became pregnant on or around the day that S. B. 8 took effect. As I write these words, some of those women do not know they are pregnant. When they find out, should they wish to exercise their constitutional right to seek abortion care, they will be unable to do so anywhere in their home State. Those with sufficient resources may spend thousands of dollars and multiple days anxiously seeking care from out-of-state providers so overwhelmed with Texas patients that they cannot adequately serve their own communities. Those without the ability to make this journey, whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or resort to dangerous methods of self-help. None of this is seriously in dispute.
These circumstances are exceptional. Women seeking abortion care in Texas are entitled to relief from this Court now. Because of the Court’s failure to act today, that relief, if it comes, will be too late for many. Once again, I dissent.
Monday, October 11, 2021
Rewire reports on the upcoming case of Cameron v. EMW Women's Surgical Center being argued in the Supreme Court tomorrow. The issue before the court is "whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law." While it will not address the merits of abortion law, the stakes are still high:
If Cameron is able to intervene and the law gets upheld, it could effectively ban abortion after 15 weeks in a state that has just two clinics and multiple restrictions, including a 24-hour waiting period and bans on insurance coverage of the procedure. Both clinics are in downtown Louisville, which means access is limited for people in other areas of the state.
Notably, the article also revisits the issue of struggles to enforce Louisville's new ordinance imposing a clinic buffer zone. The article notes the disparities in how racial justice protesters were handled after Breonna Taylor's death, compared to anti-abortion protesters. Interviewing the owner of EMW Women's Medical Center, Ona Marshall, and clinic escort and support fund director, Meg Sasse Stern, Rewire reports that:
[A]dvocates pushed for the safety zone because of the lack of enforcement of various city ordinances regulating things like harassment, noise, and sidewalk access. She also noted that these same ordinances were enforced against social justice protests after Breonna Taylor’s death, and the Louisville Metro Police Department is now under a pattern and practice investigation by the U.S. Department of Justice. LMPD arrested the state’s only Black woman lawmaker, state Rep. Attica Scott, during a September 2020 protest.
“Anti-abortion protesters are ignored and just treated differently than other protesters,” Marshall said. Stern agreed that the difference is obvious: “I cannot ignore the vast difference in treatment received by these anti-abortion protesters and the way that our police department treats protesters that are demanding police stop killing Black and brown people.”
Both Marshall and Stern are skeptical that the safety zone around EMW will be enforced due to anti-abortion sentiments in the police department. During an August 2020 Metro Council meeting about the proposed safety zone, former council member David Yates, now a Democratic state senator, said he received text messages from police officers asking, “who’s going to enforce this – lol.”
Wednesday, October 6, 2021
The University of Detroit Mercy Law Review is accepting submissions for the annual symposium, Governing Bodies: Bodily Autonomy and the Law, on Friday, March 4, 2022, in Detroit, Michigan.
Bodily autonomy has been regulated or banned on many levels throughout our history, ranging from slavery to the right to an abortion, assisted suicide, transgender rights, and even issues surrounding the present COVID-19 pandemic. While these laws and regulations have led to controversy and protest, it remains unclear where exactly the line should be drawn limiting government power over our bodies, or if there should be a line at all.
Detroit Mercy Law Review invites academics, scholars, practitioners, and other stakeholders to submit proposals for panel presentation and potential publication on topics involving governments and entities attempting to regulate bodily autonomy. These may include, but are not limited to, the following: slavery, vaccine passports and mandates, abortion laws, assisted suicide, data privacy issues, and transgender rights.
Proposals should be approximately 250–500 words, double-spaced, and should detail the proposed topic and presentation. Proposals must be submitted no later than 5 PM EST Friday, October 15, 2021, by email to Mackenzie Clark, Symposium Director, at firstname.lastname@example.org. In your e-mail, please indicate whether your proposal is for a presentation only or if you plan to submit an article based on your presentation for potential publication in the Detroit Mercy Law Review. Also, please include a current CV or resume.
Decisions will be emailed on or before Monday, November 7, 2021. The final completed manuscripts must be submitted by Friday, March 11, 2022, for editing to commence by the Law Review staff.
Wednesday, September 29, 2021
Greer Donley, David S. Cohen, and Rachel Rebouché, The Messy Post-Roe Legal Future Awaiting America, The Atlantic
America now faces the very real possibility that in just a few months’ time, the Supreme Court will interpret the U.S. Constitution to no longer protect the right to abortion. On September 1, S.B. 8—the most stringent abortion ban since before Roe v. Wade—took effect in Texas. Completely ignoring the protections of Roe, the Supreme Court refused to intervene. Though the Court’s decision was procedural in nature, it speaks volumes about the justices’ view on the importance of abortion rights and the future of Roe. That will matter greatly when, later this term, the Court decides a different abortion case, Dobbs v. Jackson Women’s Health Organization, addressing a Mississippi law that, like S.B. 8 and the copycat laws coming down the pike, challenges the fundamental holding of Roe by banning abortion before fetal viability. If the Court does overturn Roe, much of the American legal landscape—and with it, the lived experiences of millions—could change overnight, and the result will be a giant, legal mess.***
Navigating a post-Roe country will be anything but simple. Perhaps the only certainty to expect is that a post-Roe country will be one of inequity. A little fewer than half of U.S. states, mostly concentrated in the South and the Midwest, are poised to ban abortion in almost all cases if the Supreme Court overrules Roe. Some of these bans will start immediately, either because of pre-Roe laws still on the books or new “trigger laws” that will take effect the moment Roe is overturned. Scholars and activists have long noted that wealthy women in those states will be able to travel to other states to obtain abortions. But three-quarters of people seeking abortions are low-income, a group that is disproportionately people of color, and they will face barriers that will make it almost impossible to get to another state.***
But beyond the inevitable inequality resulting from overturning Roe, not much else is clear. The basic rule of Roe is straightforward: Abortion before viability must be legal in every state. This rule may not ensure practical access everywhere—abortion care is very difficult to obtain in many places—but it does outline some clear prohibitions. However, if Roe is overturned, we will live in a country where every state creates its own rules. Some states will ban abortion almost entirely, some will allow it with substantial restrictions, and others will codify reliable and equitable abortion access.
Monday, September 27, 2021
Louisville, KY's Metro Council passed an ordinance authorizing a 10-foot "buffer zone" around its EMW Women's Surgical Center, the State's longstanding clinic providing abortion care in Kentucky since 1981. After a lawsuit was dismissed challenging the ordinance as a ban on "sidewalk ministry," the buffer zone ordinance took effect this month. Clinic escorts report that protesters are ignoring the buffer and the police are not responding. Local News WHAS11 reports that Louisville's Metro Police Department gave the following statement to Metro Council Members' inquiries regarding non-enforcement:
LMPD responded to two calls for service to EMW Women’s Surgical Center Saturday morning regarding posted signs and protestors entering the buffer zone. As the ordinance is written, LMPD must witness the violation, either in person or via recording, prior to giving a written warning. An individual may not be cited for a violation of the ordinance without a prior written warning. Repeated violations must be witnessed by LMPD in person to be followed by a citation and fine.
LMPD is currently working on the logistics of tracking the written warnings as well as a training and enforcement plan. We have been in communication with the County Attorney’s office regarding the enforcement of the ordinance as well as both EMW and Metro Council regarding these issues. Given the department’s current staffing issues and other priorities, it is neither feasible nor prudent to post officers outside EMW for the purpose of witnessing an infraction.
Thursday, September 23, 2021
Reproducing Injustice: Covid-19, Reproduction, and the Law, Drexel Law School, Oct. 15
Reproductive rights are under attack in the United States, with a record number of restrictive abortion bills introduced in state legislatures this year alone. The United States continues to report high rates of maternal mortality and morbidity, with pregnant people of color at greater risk of adverse health outcomes related to childbirth and experiencing mistreatment by their health care providers at disproportionately high rates. In addition, gaps in access to health care, legal services, and other critical resources mean that many poor people and people of color face particular burdens as parents trying to raise their children in safe and healthy environments. Political divisions regarding reproduction have been exacerbated by the COVID-19 pandemic. As we look forward to a post-pandemic future, it seems important to ask: What kinds of trends do we see as we consider reproductive health and rights through the lens of the pandemic? How can lessons from the COVID-19 era inform future efforts to increase access to health services, defend reproductive rights, and promote reproductive justice? The Drexel Law Review Volume XIV presents Reproducing Injustice: COVID-19, Reproduction, and the Law, a symposium designed to facilitate a conversation about reproductive health and rights in the wake of the COVID-19 pandemic, and what we can take away from the past year and a half to advocate for reproductive justice moving forward.
Monday, September 20, 2021
San Antonio physician, Alan Baird, published an Opinion piece yesterday in the Washington Post. Having begun practicing obstetrics and gynecology before the Court's decision in Roe v. Wade, Dr. Baird describes his reaction to Texas's S.B. 8.
For me, it is 1972 all over again.
And that is why, on the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.
Wednesday, September 15, 2021
Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.
It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.
After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.
To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.
h/t Larry Solum
Wednesday, September 8, 2021
Texas Judge Grants Temporary Injunction to Stay Lawsuit by Texas Right to Life under New 6-Week Abortion Ban
A Texas state judge on Friday temporarily blocked an anti-abortion group from enforcing Texas's new 6-week abortion ban against Planned Parenthood, handing a narrow legal victory to abortion rights advocates.
Judge Maya Guerra Gamble's (D) ruling does not invalidate the new law but rather halts Texas Right to Life and its associates from suing abortion providers and workers at Planned Parenthood clinics under the statute, S.B. 8, that took effect Wednesday.
“The Court finds that S.B. 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8,” Gamble wrote.***
Judge Gamble’s temporary restraining order is due to expire in two weeks, but her Friday order also announced a Sept. 13 hearing which could lead to the pause on the anti-abortion group’s enforcement authority being extended.
1. FACE - federal Freedom of Access to Clinic Entrances Act
U.S. Attorney General Merrick Garland said Monday that the Justice Department will protect people trying to obtain or provide abortions in Texas, in the wake of the state's new restrictive abortion law.
Senate Bill 8 — often called the "heartbeat bill" by supporters — effectively bans abortions after six weeks, well before many people even know they are pregnant. Physicians who specialize in reproductive health say the term “fetal heartbeat” used in the legislation is misleading because there is no cardiovascular system or a functional heart six weeks into pregnancy.
Garland said his department will urgently explore all options to challenge the law. In the meantime, he said it will continue to protect the rights of people seeking access to abortion under the Freedom of Access to Clinic Entrances (FACE) Act of 1994.
The FACE Act prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. It also prohibits intentional property damage of a facility providing reproductive health services.
“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities," the statement explained.
"The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now," it added.
2. Use the Ku Klux Klan Act to charge those who act "under color of state law" to deprive women of their constitutional rights.
Some abortion-rights supporters say the answer is for the Department of Justice to prosecute private citizens who sue to enforce the law, which bans abortions after a fetal heartbeat is detected, the Washington Post reports.
The law authorizes private citizens to file the suits against abortion providers and others who knowingly help pregnant women violate the law, which effectively bans abortions after about six weeks of pregnancy.
In a letter, Democratic members of the House Judiciary Committee on Tuesday encouraged Garland to fight the law with legal action “up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law.”***
In a Washington Post op-ed, Laurence Tribe, a professor emeritus at Harvard Law School, explained how the DOJ could initiate criminal prosecutions using a law intended to battle the Ku Klux Klan.
The department could rely on Section 242 of the federal criminal code, which makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States.” The private citizens who sue under the Texas law are acting “under color of law,” and they are violating the constitutional right to abortion, he said.
Tribe said the DOJ could also rely on Section 241 of the federal criminal code, which makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Purely private vigilantes acting in concert with others could be prosecuted under this section, he said.
Tribe also suggested a third course of action: The DOJ could seek a court order blocking enforcement of the Texas law under the All Writs Act, which allows federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions.”
The Women's Health Protection Act in the House provides that a "health care provider has a statutory right under this Act to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services," "without any of the following limitations or requirement" like the typical restrictions on abortion in many states.
Congressional Democrats reintroduced legislation on Tuesday that would protect abortion access around the country, even if Roe v. Wade were weakened or overturned.
The Women’s Health Protection Act, if passed, would guarantee the right for health care professionals to provide abortion care and their patients to receive care, without restrictions and bans that impede access.
Specifically, it would prohibit state and federal lawmakers from imposing several limits on abortion care, including mandatory ultrasounds, waiting periods, admitting privileges requirements, and limits on medication abortion.
The bill was first introduced in 2013 and has been reintroduced in every congressional session since. However, it has never received a vote in either chamber.
The bill is led by Sens. Richard Blumenthal of Connecticut and Tammy Baldwin of Wisconsin, along with Reps. Judy Chu, D-Calif., Lois Frankel, D-Fla., Ayanna Pressley D-Mass., and Veronica Escobar D-Texas.
The renewed effort comes in the wake of the U.S. Supreme Court’s decision last month to take up Mississippi’s controversial ban on most abortions after 15 weeks of pregnancy along with a rise in anti-abortion legislation being enacted in various states.
“With the Supreme Court set to consider a direct attack on Roe and as emboldened and extremist lawmakers viciously attack women’s reproductive rights in statehouses across the nation, the Women’s Health Protection Act has never been more urgent or more necessary,” Blumenthal said. “These demagogic and draconian laws hurt women and families as they make personal and difficult medical decisions."
Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion
Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion. President Biden has called on Congress to act. House Speaker Nancy Pelosi has similarly called for action. And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021. It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment.
The Supreme Court too, has periodically suggested this option. For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).
Except that it might not be that easy. The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare. Congress must rely on a source of power specifically articulated in the Constitution.
Here are some options under the Supreme Court’s existing precedent. It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.
- Commerce Clause
Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act. Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).
The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case. In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause. It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance. Inactivity, the Court said, was not economic activity.
The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock. Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”
The Commerce Clause power also requires that a regulate activity be “economic.” This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison. While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity. The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.
The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power. The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause. Abortion services is an economic activity. It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.
The abortion context also seems more clearly interstate. With bans and restrictions on abortion, patients travel out of state to other providers. They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality. If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard. Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court. It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.
- Section 5 of the Fourteenth Amendment
A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment. This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion. But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary. Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court.
That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law. FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors. If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.
However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way. Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison.
Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs. In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality. The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct. In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished. It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation. In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.
The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right. This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt). These are rights that would not necessarily be struck down if Roe is overturned. There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion. There might also be an argument to connect to the provider’s right to work or profession.
A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination. Hibbs provides good precedential support here. In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process. See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).
- The Necessary and Proper Clause
Congress has also cited the Necessary and Proper Clause for authority to legislate abortion. The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case. The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.
- The Taxing Power
Following Sebelius, Congress could structure the abortion legislation as a tax. In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power. The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.
A Roe tax might tax the states which impose bans or regulations on abortion. That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.
- The Ninth Amendment
Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion. That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause. Another possible source of recognizing the right is the Ninth Amendment. In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution. A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment. See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020). The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.
 Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne. See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote). See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).
Tuesday, September 7, 2021
By: Greer Donley and Jill Wieber Lens
Forthcoming in: Boston College Law Review, Vol. 62, Forthcoming
Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale — the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling in cases of life-limiting fetal conditions. This Article discusses the paternalism and traditional gender stereotypes underlying these newer abortion restrictions and uses empirical studies to discredit the woman-protective rationale justifying them. The Article also suggests a radical, new response to claims that women need protection from second-trimester abortion: the embrace of second-trimester abortion “danger-talk.” First introduced in medical literature by abortion providers, danger-talk refers to the uncomfortable truths about abortion that supporters often avoid. These topics include the nature of second-trimester abortion procedures and the emotional complexity that can especially accompany second-trimester abortion. This Article advocates for greater openness about these topics, arguing that silence only capitulates the narrative of second-trimester abortion to those opposing abortion rights. The Article envisions second-trimester abortion care that better recognizes these realities and provides women with more choices that might make second-trimester abortion easier, including alternative procedures and the option of memory-making to process difficult emotions, like grief. Finally, this Article argues that more transparency about these difficult subjects will help rebut the woman-protective rationale used to justify second-trimester abortion restrictions.
Thursday, September 2, 2021
The Texas abortion ban that went into effect 9/2/21 after the Supreme Court refused to stay the act in Whole Women's Health v. Jackson, has several unusual provisions not only for abortion rights, but for enforcement of constitutional rights generally. The full text is here.
1. This is a fetal heartbeat law. (not exactly a "six-week ban").
Sec.171.204.PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL HEARTBEAT; EFFECT. (a)Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.
2. There is an exception for "medical emergency."
Sec.171.205.EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a)Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.
3. A woman cannot be sued or "prosecuted" for having the abortion.
Sec. 171.206. (b) This subchapter may not be construed to: (1) authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter
4. But those who "aid and abet" the woman or the physician are liable.
knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter
5. It provides solely for private enforcement by private civil action. No state or government actor can enforce the law.
Sec.171.207.LIMITATIONS ON PUBLIC ENFORCEMENT. (a)Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.
Sec.171.208.CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action
Except not a sexual perpetrator:
a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest
6. Remedies that may be awarded to the person suing to stop the abortion are an injunction, statutory damages, and attorneys' fees.
If a claimant prevails in an action brought under this section, the court shall award: (1)injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter; (2)statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and (3) costs and attorney's fees.
7. Tries to limit the defendant's (provider or accomplice) ability and standing to assert the constitutional right of the woman.
Notwithstanding any other law, the following are not a defense to an action brought under this section: (1) ignorance or mistake of law; (2)a defendant's belief that the requirements of this subchapter are unconstitutional or were unconstitutional;
Sec.171.209.CIVIL LIABILITY: UNDUE BURDEN DEFENSE LIMITATIONS. (a)A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless: (1)the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or (2)the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.
See also Wash Post, What to Know about the Texas Abortion Law
Strict Scrutiny Podcast, Emergency Podcast on Texas Abortion Law
By a vote of 5-4, the US Supreme Court denied abortion providers' request to stay the operation of a new Texas law banning abortion after six weeks. The split was Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett in the majority and Sotomayor, Breyer, Kagan, and Roberts in the dissent.
Here is the opinion: Whole Women's Health v. Jackson
The majority highlight the unique procedures established by the Texas law requiring private citizen enforcement.
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention
In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in
no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
For a blog post on Justice Kavanaugh's prior thinking in a stay of an abortion case, somewhat following his assent to the majority here while also seeming to follow Roberts' approach, see Supreme Court Temporarily Block Louisiana Abortion Law Requiring Doctors Admitting Privileges
All dissenting Justices wrote separate opinions.
Roberts focused on the standards of stays and temporary injunctions and maintaining the status quo.
I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
Breyer disagreeing that the procedural posture is relevant, and focused on the imminent harm to the plaintiffs, one of the traditional factors in granting temporary relief:
I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district
attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. Normally, where a legal right is “‘invaded,’” the law provides “‘a legal remedy by suit or action at law.’” Marbury v. Madison.
Sotomayor blatantly calls out the Court for its decision on the merits and procedurally.
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention. Ante, at 1. Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent....
Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of
the rights of women seeking abortions throughout Texas....
Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry....
The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.
Kagan takes on the shadow docket and the shadowy state procedure:
The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to
carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey. Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence.
Thursday, August 26, 2021
Viewing Justice Gorsuch's Opinion in the LGBT Decision in Bostock as Support for--not Against--Abortion Rights in the Upcoming Dobbs Case
Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, 13 ConLawNOW 11 (2021).
Informed speculation holds that the Supreme Court’s decision to hear and decide Dobbs v. Jackson Women’s Health Organization spells bad news for constitutional abortion rights. Recognizing both the stakes and the odds, this brief commentary engages Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County and the prospects that it opens up in Dobbs for a future for—not against—abortion rights. Bostock’s pro-gay and pro-trans sex discrimination rulings are built atop—and go out of their way to reaffirm—women’s statutorily-grounded economic and social rights, and hence women’s equal citizenship stature. Moreover, the final decision in the case emerges after judicial wrestling with rule of law concerns involving legal and social stability. In both of these respects, Bostock aligns with the controlling opinion in Planned Parenthood v. Casey, a decision that Justice Gorsuch, like other justices in Dobbs, might yet in principle reaffirm. After exploring some of Casey’s doctrinal implications and its example of judicial moderation, discussion turns to Casey’s often overlooked spiritual dimensions. Not only does Casey’s spiritual pluralism on the abortion right and its limits converge with important features of Bostock, but it also actively counsels a decision in Dobbs giving Casey and what it preserves of Roe a new lease on life as part of a larger effort to preserve the American public’s shared faith in a constitutional republic that everyone in Dobbs wishes to keep.
Monday, August 23, 2021
Lift Louisiana and If/When/How filed a motion for an injunction arguing that Louisiana's Act 482 violates the Louisiana Constitution because it deprives minors of meaningful and effective access to the Courts when seeking judicial bypass to terminate a pregnancy. Prior to the Act, Louisiana minors could either pursue a judicial bypass in the jurisdiction in which they are domiciled or in the jurisdiction in which the clinic is located. Under the prior jurisdictional rule, most bypass proceedings were heard in the parishes where two of the three remaining clinics are located. This broader approach protected the anonymity of minors, ensured that the courthouses were savvy in handling these proceedings, created a path for out of state minors to seek a bypass, and worked more expeditiously. Act 482 limits the jurisdictional rules such that minors can only pursue bypass proceedings in the parish of their domicile. Lift Louisiana and If/When/How seek an injunction blocking Act 482 before it causes irreparable injury. The plaintiffs argue that this Act deprives plaintiffs of their right to access the courts under the Louisiana Constitution and violates the due process and privileges and immunities clauses of the Fourteenth Amendment of the United States Constitution.
Monday, August 9, 2021
The Texas Court of Appeals issued an opinion in Mark Lee Dickson and Right to Life East Texas v. Afiya Center and Texas Equal Access Fund. The opinion considered underlying defamation and conspiracy claims brought by organizations named in a local anti-abortion ordinance. The appellants (advocates for the ordinance) argued that the organizations could not prove the elements of defamation. Appellants also argued that their statements were constitutionally protected speech under the constitution and the Texas Citizens’ Participation Act.
The “Waskom Ordinance” at issue read:
“WHEREAS, a surgical or chemical abortion is the purposeful and intentional ending of a human life, and is murder “with malice aforethought” since the baby in the womb has its own DNA, and at certain points in pregnancy has its own heartbeat and its own brain waves . . .” * * *
- We declare Waskom, Texas to be a Sanctuary City for the Unborn.
- Abortion at all times and at all stages of pregnancy is declared to be an act of murder with malice aforethought, subject only to the affirmative defenses described in Section C.3.
- Organizations that perform abortions and assist others in obtaining abortions are declared to be criminal organizations. * * *
- The Supreme Court’s rulings and opinions in [Roe, Casey, Stenberg, and Whole Woman’s Health] are declared to be unconstitutional usurpations of judicial power, which violate both the Tenth Amendment and the Republican Form of Government Clause, and are declared to be null and void in the City of Waskom.
The court upheld the trial court’s order denying the appellants’ motion to dismiss the defamation and conspiracy claim. The court also ordered appellant to pay costs.
Seventh Circuit Rules that Indiana’s Abortion “Complications Statute” is Not Unconstitutionally Vague
The Seventh Circuit ruled last week in Planned Parenthood of Indiana and Kentucky v. Marion County Prosecutor. The Indiana statute at issue, Indiana Code § 16-34-2-4.7, required that providers report “any adverse physical or psychological condition arising from the induction or performance of an abortion” to the state. The appeal considered whether this statute was unconstitutionally vague on its face. The District Court had agreed with the challengers and reasoned:
that there was constitutionally intolerable overlap between “normal” side effects of abortions and “complications” that would trigger the reporting requirement. As a result, the Statute “fail[ed] to inform [Plaintiffs of] what conduct is prohibited.” The district court was concerned that physicians would “run the risk of being found ... to be out of compliance with their statutory responsibilities” (and thereby risking time in prison and their medical licenses) for failing to report “every ‘adverse physical or psychological condition’ for which patients seek treatment as a reportable condition, no matter how routine, minor, and expected.” The district court found the Complications Statute’s illustrative list of conditions to be “so broad or vague that they do not remedy the uncertainty of the general definition of ‘abortion complication.’
The Seventh Circuit vacated the District Court's permanent injunction concluding that the statute has some ambiguity but “Planned Parenthood has not shown that the law is unconstitutionally vague on its face in this pre-enforcement challenge.” The Seventh Circuit reasoned (internal citations removed):
Here, we cannot conclude that the Complications Statute has no discernable core. Although Planned Parenthood contests the frequency and seriousness of abortion-related complications, Planned Parenthood’s response brief acknowledges that “[t]here are potential complications from the performance of medication and surgical abortion.” Planned Parenthood maintains that several of the complications listed in the Complications Statute are “not abortion-specific complications and almost never occur as a result of abortions,” but the brief stops short of stating that these complications are impossible.
The complications that a reasonable doctor would find to have arisen from an abortion constitute a core of the Complications Statute. Although these complications may be rare, an individual of ordinary intelligence would understand that there may be complications that arise from an abortion (as is the case with any medical procedure). And when one such rare complication occurs, the physician must report it if she believes in her reasoned medical judgment that the complication arose from an abortion. This “core” of the Complications Statute satisfies the void-for-vagueness test: It is understandable by persons of ordinary intelligence and not subject to arbitrary enforcement.
As a result, although we appreciate the dissent’s concerns about the ambiguity of this Statute, the Statute must survive Planned Parenthood’s pre-enforcement, facial attack. * * * Though an as-applied vagueness challenge to the Statute may have a different outcome, this challenge to the Statute fails because it is a facial challenge to a statute with a discernable core.
Monday, July 12, 2021
Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.
However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.