The Curious Incident of the Court That Denied Cert

The Supreme Court declined to hear a case on Arkansas’s regulation of abortion—a lack of action that may speak volumes.

Like the dog in Arthur Conan Doyle’s “Silver Blaze,” the Supreme Court on Tuesday did nothing; and many people are curious about the incident. The Court, without explanation and without recorded dissent, denied review in Planned Parenthood of Arkansas v. Jegley, a case testing Arkansas’s extremely strict regulation of abortion induced by means of medically approved drugs (“medical abortion”).

Every first-year law student learns that a denial of review of a lower-court decision means, in terms of the law, exactly nothing. It doesn’t mean that the Court agrees with the opinion below. “A simple order denying a petition for a writ of certiorari is not designed to reflect the Court’s views either as to the merits of the case or as to its jurisdiction,” according to the Tenth Edition of the authoritative Supreme Court Practice and Procedure.

But if you can think about a cert. denial and draw no conclusion at all, you are either superhuman or in a coma. Supreme Court Practice further quotes Justice Robert Jackson: “It is just one of the facts of life that today every lower court does attach importance to denials and to presence or absence of dissent from denials, as judicial opinions and lawyers’ arguments show.”

The denial in the Arkansas case does mean something. It is at least mildly surprising, especially because the denial was not accompanied by any separate opinion from a justice dissenting or concurring in the denial.

But the denial most likely does not mean that the Court has done an about-face on abortion rights. That’s because the case, as decided by the courts below, actually did not decide whether the Arkansas statute is constitutional or not. The question presented, as put to the court by Planned Parenthood, was what level of evidence the reviewing court needed to decide the constitutional issue. The Eighth Circuit decided that the court did not yet have the evidence it needed; the case will go on until it does.

The important precedent in abortion cases is not Roe v. Wade (1973) but Planned Parenthood of Southeast Pennsylvania v. Casey (1991). In that case, a narrow plurality of the Court (Justices Sandra Day O’Connor, Anthony M. Kennedy, and David Souter) proclaimed they were reaffirming the “essential holding” of Roe. “Reaffirm” in this case meant “completely rewrite.” In place of the old Roe doctrine that the right to choose abortion was “fundamental” (like the right to free speech, or to marry or bear children), the plurality now proclaimed the “undue burden” test—a regulation of abortion before viability was valid unless it had the “purpose or effect” of blocking women’s autonomy to make the choice of abortion.

Over time, the doctrine has gotten fleshed out. A provision requiring married women to notify their husbands was no good—that could have the effect of giving the husband a veto. Waiting periods and abortion-negative “informed consent” materials, however, were okay. A federal restriction on so-called “partial birth” abortion was permissible, in part because women could still have legal abortions by other methods.

The most recent “undue burden” case, Whole Woman’s Health v. Hellerstedt (2016), is also probably the most important—and it was a win for abortion rights. Texas passed a massive “health regulation” statute. Courts allowed it to take effect—which promptly led to the closure of half the state’s reproductive-health clinics. But afterwards, a district court heard testimony and considered documents assembled by the parties. That court issued extensive findings of fact comparing the effect of the law on abortion availability (drastic) with the public-health benefits of the various restrictions on clinics (limited, perhaps nonexistent). It concluded the law was an “undue burden.”

The Supreme Court, 5–3, agreed and struck the law down. The Hellerstedt opinions are dense—Justice Stephen Breyer’s decision, for the majority, weighed in at 40 pages, almost all analysis of the facts found below; the principal dissent, by Justice Samuel Alito, was three pages longer and equally fact-intensive. The key to the Court’s decision was the majority’s conclusion that in this particular case, the law’s requirements provided “few, if any, health benefits for women, pose[d] a substantial obstacle to women seeking abortions, and constitute[d] an ‘undue burden’ on their constitutional right to do so.” Even Alito’s dissent did not argue for overruling Casey; instead he contested the majority’s interpretation of the facts.

Arkansas’s law was passed in 2015. The Arkansas law will have the effect of making it impossible for any abortion clinic to provide the “abortion pill,” or more properly pills, because it requires that any clinic dispensing it have “a signed contract with a physician who agrees to handle complications” at a nearby hospital. Neither side denies that these contracts are impossible to get—doctors with hospital affiliations don’t want to provide them, and many hospitals won’t allow abortion as part of their regular practice. The contracts don’t seem, strictly speaking, necessary either—women who need hospitalization after taking the pills (a very rare event) will be admitted to hospitals regardless. But as a result of the law, both of Planned Parenthood’s Arkansas clinics will have to close, because “medical abortion” is all they provide. That will leave the state with only one clinic—one that performs only “surgical abortions,” in Little Rock. That situation will require women from other parts of the state to drive as far as 380 miles round trip to the clinic—and to do so twice, because of a state-mandated waiting period.

Planned Parenthood sought an immediate restraining order blocking the law. Early in 2016, District Judge Kristine Baker granted a “preliminary injunction” blocking the law until a full trial could be held. The state immediately appealed, and in July 2017, a three-judge panel of the Eighth Circuit reversed the district court. The appellate court, however, left the injunction in place while Planned Parenthood, now the loser, asked the Supreme Court to review its decision. That request is what the Court denied on Tuesday.

That does not mean the law will take immediate effect. Before the stay granted below can be lifted, the high court must formally transmit a copy of its opinion to the Eighth Circuit. The University of Texas law professor Steve Vladeck pointed out that “the [lower] court is supposed to issue its mandate as soon as the denial of certiorari is ‘filed.” However, he noted, there’s at least some uncertainty as to whether that happens the day cert. is denied, or the day the Supreme Court opinion arrives at the courthouse in St. Louis. “Either way,” Vladeck said, “the plaintiffs are presumably free to seek emergency relief from the district court to prevent the law from going into effect while they pursue the challenge on remand.” In fact, this precise sequence of events—preliminary injunction, reversal by appeals court, denial of cert. by Supreme Court, trial below—happened in the Texas case. Lawyers for Planned Parenthood have already drafted a petition to the district court for a new order. “As for the remand, I think it’s still likely that the plaintiffs win,” Vladeck told me. “This is a pretty frontal assault on [the precedent in] Whole Women’s Health, as long as they can build the right record.”

In addition, the Eighth Circuit did not hold that the Arkansas statute passes the Casey “undue burden” test. It said that the district court did not have enough evidence to conclude that it failed it. Unlike Hellerstedt, the Arkansas case was decided on the basis of some affidavits and exhibits—nothing like the exhaustive trial record in the Texas case. The district court didn’t find a lot of facts—instead, it wrote that there was “evidence in the record” that the law “may cause women who otherwise would have obtained an abortion not to obtain one at all”—thus making the law a “substantial obstacle.”

This opinion made its way to a panel of the Eighth Circuit Court of Appeals. Those judges rejected the lower court’s reasoning. They did not decide that the law was constitutional; instead, what they said was that the parties hadn’t produced enough facts to allow a Hellerstedt-style inquiry. “Because the district court failed to make factual findings estimating the number of women burdened by the statute,” the panel wrote, “we vacate the preliminary injunction and remand for further proceedings.” That was the decision that Planned Parenthood took to the Supreme Court.

Now the case goes back down. Unless something unexpected happens, there will be a trial on the merits, and the parties will be able to establish a Hellerstedt-style factual record. When that happens, the Eighth Circuit will have to decide yea or nay under “undue burden,” and the high court will get another crack at it.

So legally, the Court’s decision does not indicate how the case will eventually come out. That won’t stop anyone—including me—from speculating on what it means. What’s going on?

First, it may be that the pro-choice win in the Texas case indicates that facts are more important to abortion cases than they were before. If so, challengers will need to be ready with extensive specific evidence about abortion availability in their area.

It also may mean that all eyes are on Justice Kennedy. He’s often described as a “swing justice.” But most of the time that’s not true. On most issues he doesn’t “swing”; his views don’t change, but because they don’t always follow the conservative line, his vote tilts the Court back and forth.

But on abortion, Kennedy really has “swung” several times. Insider accounts of the Court indicate that he originally voted in Casey to overturn Roe altogether. After the initial vote, however, he changed his mind and signed on to the “reaffirmation” of Roe with the creation of the “undue burden” test. But after Casey, when the “undue burden” test was applied to “partial-birth abortion” restrictions, he voted with the conservatives to approve these laws despite their questionable health benefits. Indeed, he even came up with a new reason why states should be allowed to limit abortion—to protect young women from “depression and loss of esteem” stemming from regret over having ended a pregnancy.

So getting Kennedy’s vote in Hellerstedt was not an easy task for Breyer and the liberals. They won it, I think, with the power of the facts. The skimpier record in the Arkansas case very well could offer Kennedy another chance to swing toward approving the law—which would, from the liberals’ point of view, make some potentially very bad law. That could lead them to quietly vote to deny review, hoping for another cut at the case after a trial.

Meanwhile, the conservatives have a different reason to deny review. By the time the case comes back from a trial on the merits, they may hope, it might find a new justice on the Court, and they may finally have five votes to do away with Casey and Roe.

That fact underscores that, even though this particular case is not the shattering defeat it may first have seemed, abortion rights and their advocates are playing defense in legislatures and court, and losing ground slowly. Despite eventual victory in Texas, NPR’S Nina Totenberg noted, “24 of the 41 Texas abortion providers were forced to close their doors, and although the Supreme Court subsequently struck down the law two years later, fewer than a handful of those shuttered clinics have reopened.”