A major Supreme Court decision on abortion has shifted the legal landscape around the issue, but the battle is by no means close to over.
On one side, abortion rights advocates received a Supreme Court-level confirmation of what they’ve always argued: that evidence matters, that claims of an anti-abortion law’s benefits must be thoroughly vetted, and if those supposed benefits do not justify the effect it has on access to the procedure, the law is unconstitutional
On the other side, abortion opponents are admitting short-term defeat, but they say they’re digging in for the long haul. They believe that there are plenty of other types of anti-abortion laws that can still stand up in court and even the provisions invalidated by the high court Monday may still be defendable under different circumstances.
“This case does not end the abortion discussion. What it does call for is more details and that is actually going to strengthen the pro-life movement,” said Kristi Hamrick — a spokeswoman for Americans United For Life, which is a proponent of many types of anti-abortion legislation — in an interview with TPM Tuesday.
Unlike, say, the Supreme Court’s decision that legalized same-sex marriage last summer, Monday’s ruling in the case Whole Woman’s Health V. Hellerstedt did not uniformly knock down any single type of law across the country. Rather, writing for the majority, Justice Stephen Breyer conducted a thorough examination of two pieces of Texas legislation anti-abortion activists say were passed to protect women’s health. Breyer concluded their reasoning was bogus based on the evidence in the record, and the legislation really did little more than to close clinics and limit abortion access across the state.
His opinion was deeply entrenched in the facts at hand in Texas, but abortion rights supporters say it provided strong enough of a model to ensure that lower courts will be just as skeptical of this and other types of anti-abortion laws.
“There are are so many anti-abortion laws around the country that are based on at best conjecture, at worst lies, that the lower courts are going to have to look at the decision from Monday and now really closely scrutinize those laws,” said David Cohen, a law professor at Drexel University who is supportive of abortion rights.
Abortion foes, however, see enough wiggle room for them to adjust their legal strategy and even claim some sort of silver lining.
“If we had built up a better record of evidence in the lower courts, that might have made a big difference,” said Catherine Glenn Foster, an attorney and a scholar at the The Charlotte Lozier Institute, an anti-abortion research organization. “Whether it’s Texas or another state, if they just can build up that record and demonstrate that women are being helped, substantively helped, by the law, that should make a huge difference.”
According to Hamrick, Americans United For Life routinely tweaks the model anti-abortion legislation it offers lawmakers to reflect new court rulings, and the two provisions in the Texas case — the state’s admitting privileges requirement and its clinic regulations mandating they meet the standards of mini-hospitals — will likely be reconsidered in the light of this week’s decision. From there, she and other anti-abortion activists said, it will be a matter of working with state legislators when passing the bills to provide a fuller legislative record that would buttress the laws against legal challenge.
Hamrick said that meant “increased emphasis on legislative findings, probably more hearings, more expert witnesses, more medical testimonies.”
Those on the other side of the issue are already throwing cold water on this new playbook. For one, the legal obstacles facing admitting privileges in particular look almost insurmountable after the Supreme Court on Tuesday refused to review other cases where lower courts had struck down the requirement in Mississippi and Wisconsin. More broadly, those in favor of abortion rights are skeptical their opponents will be able to muster the kind of scientific evidence they say is now required to defend those laws.
“Anti-abortion legislators are going to do what they do, which is pass anti-abortion laws, so we’re always going to have these challenges,” Cohen said. “But will they be able to point to one instance of one woman who had a problem and say that because of that, the law is constitutional? No, I don’t think Justice Breyer’s opinion leaves room for that”
The legal questions get more complicated once courts move beyond the sort of clinic regulations on trial in Whole Woman’s Health, and into the other types of legislation, where the supposed justification is no longer as cut and dry as it was with the Texas legislation.
“It really does open up a lot of questions where the benefits just aren’t clear,” said Jessie Hill, a professor at Case Western Reserve University School of Law who previously worked for the ACLU litigating reproductive rights cases.
It is more uncertain how Monday’s decision impacts litigation around anti-abortion legislation like the 20-week ban, which has been passed by more than a dozen states, or so-called “informed consent” laws, such as those requiring medically unnecessary ultrasounds.
“The way that [anti-abortion activists] might be right is that it does kind of depend on lower courts and what they end up doing with this whole decision,” Hill said. “So even though I feel that the opinion is very broad and very sweeping, much more than I had dared to hope for, it is still going to be played out in the lower courts.”