Two weeks ago the 5th Circuit Court of Appeals delivered a major blow to women’s reproductive rights in Texas, allowing the state to begin enforcing the most restrictive anti-abortion law in the nation.
Acting with unusual speed on a request for a stay of the Fifth Circuit Court order, the U.S. Supreme Court on Tuesday enjoined the Texas anti-abortion law from being enforced while the case is on appeal. Even more surprising to court observers was that the decision was 6-3, with only Justices Thomas, Scalia and Alito dissenting that the law should be allowed to be enforced.
Lyle Denniston at SCOTUSblog writes, Court blocks abortion limits in Texas:
Over the dissents of three Justices, the Supreme Court on Tuesday evening barred Texas from enforcing two parts of its new abortion-restriction law — one part as it applied throughout the state, the other as it applied to two clinics in the southwest part of the state.
The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery. And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic. That requirement can continue to be enforced elsewhere in Texas, the Court indicated.
Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open. At one time recently, Texas had forty-one clinics. The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.
The Court’s order will remain in effect while the U.S. Court of Appeals for the Fifth Circuit rules on a constitutional challenge to the two measures. That court had previously upheld the admitting privileges requirement as it applied all across the state. Most recently, it had blocked a new ruling by a judge in Austin that seemed to invalidate the two provisions statewide.
The Supreme Court gave no explanation for the four-sentence order. It noted that Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas would have refused to delay any part of the state requirements. They did not give their reasoning. It would have taken the votes of five Justices to block the provisions, so it appears that at least that number from among the other six Justices voted for the result. The Justices voting for the order were not noted.
In asking the Court to set aside, temporarily, the Fifth Circuit’s orders permitting enforcement of the two provisions, lawyers for the clinics had said that clinics closed as a result probably would not reopen unless those restrictions were lifted. They also contended that there had recently been an increase in the number of women seeking illegal abortions in areas where clinics could no longer provide services.
The seven clinics that were not affected by the new restrictions (and the eighth that is soon to open) were concentrated in the four largest metropolitan areas in the eastern part of the state. The lawyers had told the Court that, for the time being, there were no licensed facilities to provide abortions anywhere in the state south or west of San Antonio — “an area larger than most states.”
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The Supreme Court’s order is not a final ruling on the constitutionality of the new limitations, but is a strong indication that the state may have difficulty defending them, at least as statewide measures.
The Court’s order marked the first time in the Justices’ new Term that the abortion controversy had returned. There may be other tests of the Court’s current view on that controversy later in the Term.
Garrett Epps at The Atlantic has an overview of the current constitutional status of abortion rights. How the ‘Fundamental Right’ to Abortion Faded Away:
[On Tuesday the Court] blocked enforcement of a Texas statute that was about to force closure of 13 of the state’s 21 abortion clinics.
A district judge had blocked the Texas statute, but the Fifth Circuit—probably the most conservative appeals court in the country—reversed. Now the Supreme Court has “stayed” the appeals court’s order, meaning the clinics can remain open. It seems likely that stay will be in effect until the justices decide whether to hear an appeal from the Fifth Circuit’s order. But as we have learned with the same-sex-marriage cases this fall, a Supreme Court stay does not mean the Court will definitely hear the appeal. And even if it does, a new case in front of this Court might not clear things up much.
Forty-one years after the Supreme Court held that women have the right to choose between childbirth and abortion, little remains of what was once a “fundamental right.” How did we get here?
To understand the current case, readers have to grasp the constitutional concept of “levels of scrutiny.”
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“Scrutiny” refers to how good a reason a court must demand. The lowest “level of scrutiny” is called “rational basis,” which just means that someone who’s not insane might think the law is a good idea.
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“Fundamental rights,” on the other hand, are subject to “strict scrutiny”—laws can’t abridge them without “a really good reason.” Roe v. Wade in 1973 held that the right to choose abortion (before the third trimester of pregnancy) was “fundamental.” Restrictions on it were justified, if at all, only by a “compelling governmental interest” (the classic “really good reason”)—and by proof that the restriction really will achieve that interest. That test is hard to pass. For two decades, most restrictions failed it.
In 1992, however, a three-justice plurality on the Court announced it was reaffirming “the essential holding” of Roe. But that case, Planned Parenthood of S.E. Pennsylvania v. Casey, didn’t really reaffirm Roe; it created a brand-new “level of scrutiny” that’s still confusing courts today.
The joint opinion by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter made clear that government is free to express “profound respect for the life of the unborn” at any stage of pregnancy. That is, the state can try to “persuade [a pregnant woman] to choose childbirth over abortion” and it can deliberately make it “more difficult or more expensive” to get an abortion—as long as its regulations don’t form a “a substantial obstacle to the woman’s exercise of the right to choose.” This is called the “undue burden” standard. It means you can deliberately “burden” the right, as long as you don’t do so “unduly.”
What is an “undue burden”? The three justices in Casey said it was any measure that had “the purpose or effect of placing a substantial obstacle” in the path of a woman seeking abortion. A regulation could prevent some women from getting an abortion at all, and still not be an “undue burden.” The Casey Court approved a 24-hour waiting period, which makes abortion nearly impossible for at least some women in rural areas, and it approved an “informed consent” requirement that had little to do with medical risks and instead involved conveying a great deal of information—like the “gestational age of the fetus” and the availability of child support and adoption—aimed at making childbirth seem like a better option. The only measure the plurality disapproved was a requirement that married women in most cases notify their husbands before getting an abortion. That was an “undue burden,” the plurality said, because it would be a “substantial obstacle” in “a large fraction” of the cases to which it applied.
The undue-burden standard that O’Connor invented was always vague and vaporous at best.
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When O’Connor left the Court in 2005, she was replaced by Samuel Alito. The concept of “undue burden” began to shift. A federal ban on a form of abortion (called by its opponents “partial birth”) was not an “undue burden,” the Court now held, even though it made no exception for cases where a doctor found the method necessary to protect a pregnant woman’s health. The measure, Kennedy wrote, wouldn’t prevent anyone from getting an abortion; all it did was require some women to accept some increased risk. The law was justified, he reasoned (based, he admitted, on no data at all) in part because some women would later regret choosing this form of abortion. The state was protecting them from themselves.
Flash forward to 2011, as newly elected Republican legislatures convened in red states. After 40 decades of mobilization by anti-abortion activists, the political climate and much of the federal judiciary had turned toxic for abortion rights. A study by the Guttmacher Institute finds that state legislatures enacted 205 restrictions between 2011 and 2013—more than had been passed nationwide in the 10 previous years. The two at issue in Texas are called “TRAPs” (“targeted regulation of abortion providers”)—supposedly health-related rules that apply only to abortion providers and clinics.
First is an “admitting privileges” requirement—any doctor performing abortions must have a formal seal of approval from a hospital within 30 miles of the clinic—approval which may be withheld for economic or competitive reasons, or simply because the hospital disapproves of abortion. There is no real medical benefit. In the rare case of a complication requiring emergency treatment, local hospitals will treat any patient from a clinic. Second is a requirement that abortion clinics meet the physical standards for “ambulatory surgical centers,” which perform invasive outpatient surgery. Abortion clinics aren’t ASCs, but the legislatures now required them to have the same level of facilities, including things such as the width of hallways. Many existing clinics don’t meet those standards, and would have to close.
So did these laws impose an “undue burden”? No, the Fifth Circuit found, because they wouldn’t stop a “large fraction” of women from getting an abortion.
If the laws went into effect, 90 percent of women would only have to drive 150 miles to get to a clinic—and “an increase of travel of less than 150 miles for some women is not an undue burden,” the Fifth Circuit said. The remaining 10 percent would be out of luck—but 10 percent is not a “large fraction.”
The Casey plurality had said an undue burden was any measure that had “the purpose or effect of placing a substantial obstacle” in a woman’s path. As Cornell Law Professor Sherry Colb has pointed out, “Had the Fifth Circuit … taken the purpose prong of this test seriously, it would not have had to closely examine the impact of such laws.” The Texas law clearly had the purpose of stopping as many abortions as the legislature thought it could get away with. The emerging rule is: Some bullying, even a lot of bullying, is okay. As long as we pretend there’s a health purpose, as long as some women somewhere can get still abortions, as long as nobody anywhere admits what’s really going on, the “right” has not been violated.
The right to choose, then, isn’t what The New York Times’s Linda Greenhouse calls “a right like any other.” It’s more like a role on a reality-TV show—the chance to stumble through a growing, onerous, and senseless set of demands designed to exhaust and bully any woman who tries to exercise it. It would be nice to imagine that the Supreme Court might set this topsy-turvy doctrine straight. But looking at the five members of this Court’s majority—the five who voted in Hobby Lobby to ignore female employees’ reproductive-health needs—I remember some words of Justice Harry Blackmun as he watched the tide on the Court turn against abortion rights in 1989. “The signs are evident and ominous,” he wrote, “and a chill wind blows.”
Too many Americans believe that once a “fundamental right” is established it cannot be taken away. But individual rights are under constant threat from those who wish to turn back the clock on such rights — whether it be abortion rights, or voting rights, or freedom from racial discrimination. Too many Americans take for granted the rights that generations of Americans before them fought and died to establish. Freedom is not free, it must constantly be defended to be preserved.
Civic participation in American elections is a national disgrace. A new poll shows that Democratic women are less likely to vote than Republican women are. Democrats have a ‘woman problem,’ too:
The new Washington Post/ABC News poll underscores still another layer to the challenge Democrats face: It finds that Republican women are certain to vote this fall at a significantly higher rate than Democratic women are.
Broadly, the poll finds that the familiar Democratic “midterm drop-off problem” is very much in force. It finds that 63 percent of Americans are “absolutely certain to vote,” and these numbers are higher among GOP-aligned groups (whites, older voters) than among Dem ones (non-whites, younger voters):
* 77 percent of Republicans are certain to vote, while 63 percent of Democrats say the same.
* Only 39 percent of voters 18-39 are certain to vote, while 73 percent of voters over 65 say the same.
* Only 45 percent of nonwhite voters are certain to vote, while 70 percent of white voters say the same. (Philip Bump has a terrific interactive chart that shows all of this in more detail.)
Move to women, and it gets very interesting. Sixty-five percent of women say they are certain to vote, versus 61 percent of men. That’s a plus for Democrats, right?
Well, you’d think, but when you break down those women by party, it turns out that 79 percent of Republican women are certain to vote, versus 66 percent of Democratic women.
This gets to the core of the Dem challenge this year: Turning out Democratic women.
When you do not vote, you make it possible that one day soon you will wake up to the dystopian world of The Handmaid’s Tale in which a totalitarian Christian theocracy has overthrown the United States government, and women are subjugated with all of their rights taken away.
Defend your constitutional rights and your freedom — cast your ballot and vote!