Friday, January 10, 2020
Amicus Brief filed by Members of Congress invites the Supreme Court to overrule Roe and Casey, what is really making the Court’s abortion precedent “unworkable”?
By Cynthia Soohoo (January 10, 2020)
Last week over 200 federal lawmakers filed an amicus brief inviting the Supreme Court to overrule its 1973 case Roe v. Wade, which recognized woman’s fundamental right to access abortion. The brief, signed by roughly 80% of Republicans in Congress and 2 Democratic House Members, takes the position that the “undue burden” standard that the Court applies to determine if abortion restrictions are constitutional is “unworkable” and so “vague and opaque” that the Court should not only reconsider the undue burden standard but the right to abortion itself.
The brief was filed in June Medical Services v. Gee which addresses the constitutionality of a Louisiana law requiring that doctors who perform abortions have admitting privileges at hospitals within 30 miles from where the procedure is performed and will be argued before the Court in early March. The brief’s extraordinary request is not surprising given that it was written by Americans United for Life, an anti-abortion public interest law firm that has led the fight to overturn Roe v. Wade since the 1970s. But the brief’s argument is ironic given strong evidence that to the degree that Roe and Casey can be deemed unworkable what has made it so is the staunch refusal of anti-choice activists to accept the decisions and the extreme politicization of abortion so that changes in the Supreme Court’s composition raise expectations that states and lower courts need not follow the law.
The refusal to accept Roe’s core holding, despite repeated reaffirmance by the Supreme Court, is illustrated by the claim made in the Legislators’ Brief that “Roe did not actually hold that abortion was a ‘fundamental’ constitutional right, but only implied it.” Not only have AUL and other anti-abortion groups refused to accept Roe, since the 1970s, they have consistently churned out model bills creating different types of abortion restrictions designed to undermine access to abortion and test the limits of Roe. After Casey allowed states to adopt pre-viability restrictions on abortion to protect women’s health as long as the restrictions do not impose an undue burden on abortion access, AUL encouraged states to pass new health regulations specifically targeting the provision of abortion. Known as TRAP laws, these laws do not prohibit abortions, but they impose regulatory requirements that make it difficult or impossible for the doctors who provide abortions to stay in business, raising the question of whether TRAP laws can create an unconstitutional undue burden.
This is the question that the 2016 case, Whole Woman’s Health v. Hellerstedt resolved. In doing so, the Supreme Court clarified that courts applying the undue burden standard should determine whether a challenged law advances the state’s purported interest and then balance the laws’ benefits with the burden it imposes on abortion access. After applying the standard, the Supreme Court held that an admitting privilege law that is virtually identical to the law challenged in June Medical Services was unconstitutional because the law provided no health benefit and imposed numerous obstacle in the path of a woman seeking an abortion.
Contrary to claims that the undue burden standard is “unworkable,” in 2016 and early 2017, courts had no problem applying the standard, especially in cases involving admitting privileges. After Whole Woman’s Health, the Supreme Court declined to hear cases challenging decisions striking down admitting privilege laws in Wisconsin and Mississippi. Alabama’s Attorney General dropped an appeal of an admitting privilege case, stating that “There is no good faith argument that Alabama’s law remains constitutional in light of the Supreme Court’s ruling.” Tennessee dropped a challenge to an admitting privileges law, and where states refused to drop cases, courts struck down admitting privilege laws.
But application of the undue burden standard and respect for Roe and Casey shifted when the Supreme Court’s composition changed. After Justice Kavanaugh joined the Court in late 2018, legislatures rushed to pass even more extreme laws that go to the heart of Roe’s core holding that a woman has a right to choose an abortion prior to fetal viability. These laws included a total abortion ban in Alabama and multiple state bans on abortion just a few weeks into pregnancy. Illustrating just how cavalier states became about complying with Supreme Court precedent, in 2019 Ohio passed a 6 week abortion ban despite the fact that an identical bill had been vetoed the year before by its former Governor John Kasich, an anti-choice Republican, because the law was unconstitutional.
Even though lower courts have struck down the extreme abortion bans laws, states have become more aggressive in continuing legal challenges, perhaps in hopes that the cases will work their way up to the reconstituted Supreme Court. This leads us back to June Medical Services and the argument in the Legislators’ Brief that the Supreme Court should reconsider its precedents because the undue burden standard has become unworkable. As recognized by dissenting Fifth Circuit Judge Patrick Higginbotham, who was part of the Fifth Circuit panel that heard June Medical Services below, the application of the undue burden standard after Whole Woman’s Health is “straightforward.” What is making it unworkable is the expectation that the newly constituted Roberts court will be open to the invitation to overturn Roe and Casey. Hopefully, the invitation will be declined.