Lorie Shaull
The Supreme Court will not debate two cases that threatened to cut funding for Planned Parenthood in Kansas and Louisiana.
On December 10, Justice Brett Kavanaugh and Chief Justice John Roberts voted against advancing two cases on the defunding of Planned Parenthood to the U.S. Supreme Court, meaning lower-court rulings will stand and Planned Parenthood will remain funded in Kansas and Louisiana.
Senator Susan Collins, Republican of Maine, a key figure during Kavanaugh’s contentious confirmation, touted the decision as “vindication” of her support for a man who many women’s rights advocates fear will ultimately bring down Roe v. Wade.
If these two cases were the only reproductive rights cases poised to rise to the Supreme Court in the near future, or if they dealt directly with legal restrictions to abortion, Collins might have an argument. In reality, there are a dozen other abortion restriction cases in the Supreme Court pipeline. And many of the laws in question go far beyond the two cases in the December 10 decision, seeking to enact direct legal restrictions on abortion.
Even before Kavanaugh was confirmed, political commentators predicted that Roberts might, for a while, steer the court away from controversial topics like abortion. In recent months, Roberts has indeed gone out of his way to reassure the public that the Supreme Court has not become a politicized institution, speaking about the independence of the judiciary both at the University of Minnesota Law School in October and in a rare statement in November, in which he chided President Donald Trump for referring to one jurist as an “Obama judge.”
In reality, there are a dozen other abortion restriction cases in the Supreme Court pipeline.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in the statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
But Roberts’s words offer slim assurance that Roe will remain safe from a new, more conservative court. Only four justices must vote yes for a case to proceed to the Supreme Court. If Roberts decides that even one of the abortion cases in the pipeline is important enough to risk the court’s reputation as politically neutral or if Kavanaugh decides to break with the chief justice and join the other conservative justices in calling for a more direct abortion-restriction case to be heard, Roe will truly be tested.
It is the moment that anti-choice politicians and activists have been working toward for years.
It’s no accident that the lower courts are filled with cases aimed at eroding the rights protected by Roe and reaffirmed in Planned Parenthood v. Casey. In a June 2017 article on the 25th anniversary of Casey, a journalist writing for the National Review attributed “pro-life” gains to “shrewdly used legal openings granted to them by the Casey decision.” It’s a startlingly honest description of a strategy that has often been thinly veiled by anti-choice politicians as an attempt to safeguard women’s health.
Targeted Regulation of Abortion Providers (TRAP) laws are an apt example. Billed by anti-choice politicians as health regulations, TRAP laws actually impose medically irrelevant but difficult to fulfill requirements on clinics that perform abortions, often forcing them to shut down.
In its 2016 decision in Whole Woman’s Health v. Hellerstedt, the Supreme Court found that a Texas law requiring doctors who perform abortions to have admitting privileges at a local hospital and clinics to maintain hospital-like building standards did not protect patient’s health but did place an undue burden on people seeking abortions. The precedent has allowed pro-choice legal advocates to squash TRAP laws in other states.
Even so, TRAP laws are making their way through the courts. One that could end up at the Supreme Court in the near future is June Medical Services v. Gee, which challenges a number of abortion restrictions imposed by Louisiana, including unnecessary requirements that make it more difficult to obtain a medication abortion.
In addition to TRAP laws, anti-choice politicians have enacted policies that restrict the accepted reasons for seeking an abortion, limit the types of procedures that may be used, mandate burial or cremation of fetal tissue, and deny abortion rights to immigrants. Each of these types of restrictions are part of cases the Center for Reproductive Rights says are likely to make it to the Supreme Court in the coming months.
Planned Parenthood of Indiana and Kentucky Inc. v. Commissioner of the Indiana State Department of Health, for example, challenges Indiana restrictions on the reasons for which a person can choose to have an abortion, a policy in direct conflict with Roe’s categorical protection of abortions before the point of viability. The case also addresses state requirements about disposal of fetal tissue, which stand to inflate abortion costs and increase stigma.
The Seventh Circuit ruled in favor of Planned Parenthood, and Indiana has already referred the case to the Supreme Court. In an amicus brief, the Ethics and Religious Liberty Commission of the Southern Baptist Convention explicitly advised the Supreme Court, “this case also presents a suitable vehicle for considering whether Roe and Casey should be reevaluated and overruled, in whole or in part.”
Cases in Alabama, Arkansas, and Texas contest laws that would ban specific abortion procedures, even though they are described by the American Congress of Obstetricians and Gynecologists as “medically preferred.”
Garza v. Azar, the class-action suit that originated more than a year ago when the government attempted to prevent a seventeen-year old undocumented immigrant in its custody from receiving an abortion is back in the D.C. Circuit court and could continue on to the Supreme Court.
“The Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life,” Kavanaugh wrote.
In October 2017, the D.C. Circuit court ruled on an earlier version of the case that the government had to allow Jane Doe to obtain an abortion as soon as possible. Then-Circuit Judge, now Justice, Kavanaugh wrote a dissent that leaves little doubt as to his position on abortion rights or to how he would rule given another shot at this case as a Supreme Court justice.
“After all, the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life,” Kavanaugh wrote. He also expressed legal support for delay tactics—such as mandatory waiting periods and consent and notice regulations—that make it more difficult to access safe, legal abortion.
Early abortion bans are another popular tactic and a direct threat to Roe’s protection of abortion before the point of viability. One of these laws likely to come before the Supreme Court is Iowa’s six-week abortion ban that is currently before a state court. Iowa state Senator Rick Bertrand, a Republican proponent of the ban, is straightforward about its intent.
“I’m not naive, this bill will never see the light of day in Iowa,” Bertrand told The Guardian. “This bill was about taking another shot at Roe v Wade.”
Other legal machinations by anti-choice politicians include state legislation to drastically restrict or even eliminate the right to abortion were Roe to be overturned. Prior to Kavanaugh’s confirmation, these laws were seen largely as political posturing. But with a slew of cases that could gut Roe close to the Supreme Court, they now pose a real threat.
According to the Guttmacher Institute, four states—Louisiana, Mississippi, North Dakota, and South Dakota—intend to ban abortion if Roe is overturned. Nine states still have pre-Roe abortion bans on the books. Seven states have expressed the intent to limit abortion to the maximum extent permitted.
Should worse come to worst, a strong network of state-level advocacy resources may be the only thing protecting individuals’ fundamental right to abortion.
Even if Justice Ruth Bader Ginsburg continues to serve until she can be replaced by a progressive justice, the Supreme Court is likely to remain conservative for decades. That puts state-level activism on the front lines of the fight for reproductive rights.
Nine states—California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, Oregon, and Washington—have policies in place that will protect the right to abortion even if Roe is overturned. California’s 2002 Reproductive Privacy act, for example, codifies an individual’s “fundamental right to choose to bear a child or obtain an abortion.” Washington’s 1991 Initiative 120 declares “a woman's right to choose physician performed abortion prior to fetal viability."
Pro-choice organizations like Planned Parenthood are upping their focus on state-level advocacy. In its new “Care for All” plan, the organization lays out a three-part strategy for a post-Kavanaugh world. First, they plan to expand reproductive healthcare services in states where abortion will probably remain legal even if Roe is overturned, and to develop innovative ways of providing services to people living in states where access is restricted. Second, they will continue to work with state-level groups to advocate for reproductive rights and remove abortion restrictions. And finally, the organization intends to work nationwide to reduce abortion stigma.
These are initiatives that grassroots activists can imitate by providing assistance to those who have to jump hurdles to obtain an abortion and advocating with state legislators to enact protective legislation and overturn restrictions.
State abortion restriction legislation that never passes can’t diminish local reproductive rights, and it can’t work its way through the courts to threaten Roe. But should worse come to worst, a strong network of state-level advocacy resources may be the only thing protecting individuals’ fundamental right to abortion.