As promised, before we launch into what might happen to women’s reproductive rights under the reign of a malignantly narcissistic peeled cantaloupe (spoiler alert: the news isn’t good), we address the state of the law as it stands now.
Had Hillary Clinton won the election, the current state of the law would have been etched in stone with one or two Supreme Court appointments. That’s because the Supreme Court’s justices presently cut 5-3 in favor of a constitutional right to reproductive choice as a component of the “liberty” guaranteed under the Fifth and Fourteenth Amendments’ Due Process Clauses. When Donald Trump replaces the late Antonin Scalia (the ‘Garland Seat’) with a newer, younger Scalia, that 5-3 margin will narrow to 5-4, where it stood before Scalia died. Had Merrick Garland landed the Garland Seat (or had Clinton appointed someone more progressive), the pro-choice vote on the Court would have swelled to a decidedly safer 6-3 margin.
As to the state of the law we describe here, it will likely remain the state of the law unless Trump replaces not just Scalia but also one or more of the three oldest members of the Court: Ruth Bader Ginsburg (83), Anthony Kennedy (80), or Stephen Breyer (78). Yes, that’s right – the three oldest justices, each of whom has already outlasted the average lifespan for an American of his or her gender, are the two leading liberals (Ginsburg and Breyer) and the swing vote (Kennedy, who recently voted with the liberals to uphold a woman’s right to choose).
So it’s not just that Trump will likely get to replace one or two justices in addition to Scalia; it’s that each such appointment is likely to mark a pronounced ideological lurch to the right. And Trump will need just one of those appointments (after the Garland Seat) to change the balance on reproductive rights from 5-4 to 4-5. Two appointments would get him to 3-6, and progressive social concerns – courts call them privacy interests – would then hibernate for a generation or two. (Reproductive choice will not be the only progressive ideal on the chopping block; it will be joined by marriage equality, affirmative action, public unions, and more. If you voted for Gary Johnson, Jill Stein, or not at all, we hope it felt good while it lasted.)
The most oft-cited reproductive-freedom cases are Roe v Wade and Planned Parenthood v. Casey. But the leading case is a more recent case, and it’s actually a step forward from Roe and Casey, at least from the pro-choice perspective. That case is called Whole Woman’s Health v Hellerstedt (we’ll shorthand that as WWH).
In Roe v Wade, the Court grappled with the question whether there was some point in the continuum of a human pregnancy when the state might have a compelling interest in protecting the life of a fetus. That question depended largely, in turn, on whether a fetus might ever be regarded as possessing something on the order of human life. The Court sidestepped addressing that question head-on in Roe, but said, to oversimplify a bit, that the point of fetal viability was close enough. Fetal viability is the point at which a fetus can survive outside the womb without extraordinary medical intervention.
The central holding of Roe was and remains that, although the government may pervasively regulate (and even ban) abortion procedures after the point of viability, it may not unreasonably restrict a woman’s right to terminate a pregnancy before viability. There was more to Roe (it created an outdated ‘trimester framework’), but for our purposes, the central holding is the salient point.
In Casey, the Court eliminated Roe’s trimester framework but maintained a framework in which viability was key. In clarifying the rules, the Court said that a) the government may ban post-viability abortion procedures altogether as long as it provides an exception for protecting the health of the mother, and b) the government, although it may impose reasonable medical and health-related restrictions on pre-viability abortion procedures, may not impose an “undue burden” on the right of a woman to terminate a pregnancy.
As one might imagine, a standard like “undue burden” is a lawyer’s nightmare. What the hell does “undue” mean, and what kind of a “burden” might rise to that level? In a futile effort to clarify this standard, the Court wrote that an “undue burden” is one that places a “substantial obstacle” in the path of a woman who wants to have a pre-viability abortion.
To say that an undue burden is a substantial obstacle is to hew too closely to what we might call recursive flummery, but the Court was at least kind enough to give us some examples: routine informed-consent requirements, a 24-hour waiting period, routine record-keeping requirements, and a parental notice requirement (provided that it allows for a judge to bypass abusive or neglectful parents) are burdens and obstacles, but they are not undue or substantial. Spousal notification, on the other hand, is not just an obstacle, but a substantial (and impermissible) one, because it injects the state into the marital relationship in potentially destabilizing ways.
After Casey, the only question as to any pre-viability restriction was whether it imposed a substantial burden, meaning not just a burden, but a big one. It seemed, then, that state governments were free to impose burdens, even when those burdens might serve no purpose at all, as long as the burdens were not too big. WWH changed that.
In WWH, a 2016 case, the Court explained that it had seen enough of pretextual abortion restrictions passed by Republican legislatures that purported to be nothing more than regulations intended to protect women from their own bad judgments or unforeseen medical complications. In WWH, the Court struck down state laws that required abortion clinics to have top-grade surgical facilities and admitting privileges to nearby hospitals. To reach those results, the Court used a new test: not only would it consider whether the burden on a woman’s right to have an abortion was too big; it would also consider whether there was any real benefit associated with the law. In other words, what was once a single-factor test (undue burden) is now a balancing test where the burden is not analyzed in a vacuum, but rather against the actual benefits derived from the law.
This new approach is “friendlier,” you might say, to the pro-choice advocate in a reproductive-rights case because it gives a court two ways rather than one to strike down an abortion restriction. Now a court can strike down such a restriction either because it imposes an obstacle that is too big or because that obstacle, even if it’s not too big, is out of proportion to any benefit derived from the restriction at issue. If there is no benefit to be derived from an abortion restriction, then any burden is “undue.”
Indeed, that is why the Court struck down the surgical-facility and admitting-privileges requirements at issue in WWH: regardless whether they constituted unwieldy obstacles (which the Court found that they did, incidentally), neither provided any benefit. No surgical center is required when many abortion procedures involve sending a woman home to take a pill, and almost all abortion clinics have contractual relationships with nearby hospitals that render admitting privileges superfluous. There was no medical benefit associated with either restriction, so the burdens, no matter how weighty or flimsy, were undue. (What the Court was really saying here is that since neither restriction engendered any medical benefit, the states’ proffered reasons for their laws were bullshit, but courts aren’t allowed to say that.)
In a nutshell (and no, this post is not a treatise), at least as to constitutional issues, that is the current state of the law about reproductive health and freedom. In the following series of posts, we’ll consider where we might be going from here.