If you’re a liberal court-watcher, you may be feeling an unaccustomed fresh breeze blowing from the direction of the Supreme Court. It smells like… optimism.
And this month, there were three more surprising victories, on affirmative action, domestic violence and guns, and now the biggest win of all: Whole Woman’s Health v. Hellerstedt. This decision, which strikes down Texas’ notorious TRAP law, is arguably the biggest victory for abortion rights since Roe v. Wade.
Like other red-state TRAP laws, Texas’ law (the same one Wendy Davis bravely but unsuccessfully filibustered) was intended to force abortion clinics to shut down by imposing regulations that are all-but-impossible to comply with. One requires doctors to have “admitting privileges” at a hospital within 30 miles (note, this isn’t just the ability to send patients to the emergency room, obviously any doctor can do that). The other requires all clinics to be retrofitted as “ambulatory surgical centers”, which would cost millions of dollars that small, rural practices don’t have.
If the law had been upheld, there would have been just five clinics in the entire state of Texas, down from about 40 before it was passed. To serve more than five million women over an area of 280,000 square miles, that would be a cruel joke.
I was pessimistic about this one. A conservative appeals court had already upheld the law, and I had expected another 4-4 tie that would have left it intact. Until now, it had seemed that there was no anti-abortion law Justice Kennedy wouldn’t bless. I believed he’d come to a compromise with himself to rule that abortion should be legal in principle while voting to uphold any restriction in practice.
But not this time. It looks like Texas finally passed a law so blatant in its bad faith that even he couldn’t tolerate it. He joined a five-justice majority ruling resoundingly that the law had no purpose other than to close clinics. I thought this was common sense, of course, I’m just not used to a majority of the Supreme Court agreeing, much less agreeing in such strong and unequivocal terms.
Justice Breyer’s opinion hit all the right notes. It pointed out that abortion is one of the safest medical procedures there is, safer than other procedures – including dental surgery, colonoscopy, and yes, childbirth – that weren’t subject to the same burdensome restrictions. It explained that abortion is usually done by taking a pill, making it nonsensical that it would need a clinic with a fully equipped operating room. And it dismantled Texas’ defense by noting that when asked for a single example of a woman who would’ve been helped by this law, the state couldn’t offer one.Even the dissenting conservative justices seemed to recognize that they didn’t have a leg to stand on. They spent very little time discussing the substance of the ruling or TRAP laws in general. Instead, they grumbled about technicalities. Clarence Thomas muttered that he would have dismissed the case on standing because women should have had to file the lawsuit, not doctors, as if a law constraining what doctors can do isn’t the doctors’ business. (No doubt if Texas women had filed the suit, he’d have said that only the doctors had standing.)
Roberts and Alito, meanwhile, complained about a legal doctrine called res judicata. Their argument is that, because the doctors had filed a similar suit before the law took effect and lost, they shouldn’t be allowed to relitigate, even if the dire consequences they predicted are now happening. You could call it the Conservative Judge Two-Step: when a lawsuit is filed against a law before it’s gone into effect, say that the harm is speculative and throw the case out; if the predicted harm actually happens and the lawsuit is refiled, say that the matter was already judged and throw the case out.
But, happily, these evasions didn’t succeed. What I’m wondering is what brought about Kennedy’s change of heart. Why this ruling, and why now?
It’s possible that this was always his limit, and it just took us this long to discover it. But it’s also possible that he’s genuinely becoming more progressive. Maybe Obergefell, one year ago this week, put him on a path to greater liberalism: once he’d written a historic ruling, he started to discover other ways in which he agreed with that philosophy. Or maybe the court’s liberal justices are influencing him more now that Scalia is gone.
Either way, the Supreme Court has handed us a powerful weapon against TRAP laws nationwide. As a bonus, they also sustained the Ninth Circuit’s decision that pharmacists don’t have a right not to fill prescriptions for contraception. (Predictably, the conservative justices who thought we should defer to the Texas legislature suddenly rediscovered their concern for whether regulations serve a “legitimate purpose”.) We have the advantage, and we should press it, since there’s a lot of work to do.
Because the law was partially in effect for several months, the first order of business is to reopen the Texas clinics that were forced to shut down. We should also waste no time using this ruling to knock out TRAP laws in other states.
But after that’s done, we ought to think bigger. Pro-choice advocates have been trying to hold the line for too long. It’s about time we went on the offensive. State waiting periods, the Hyde Amendment and other noxious laws ought to be our next targets. With the wind at our backs and an impending progressive majority on the Supreme Court, there’s reason to believe that we can win decisive and lasting gains for the right of choice.