Will the U.S. Supreme Court Take Precedent Seriously on Abortion?

Justices are set to hear a major case this week—and will be forced to decide whether they meant what they’ve said in the past.

J. Scott Applewhite / AP

In the 1992 film My Cousin Vinnie, Joe Pesci, as the New-Jersey-mechanic-turned-lawyer Vincent Gambini, appears in a rural Alabama courtroom in his customary garb of blue jeans, cowboy boots, and leather jacket. The trial judge, played by the immortal Fred Gwynne, tells him to come to court the next day in a suit “made out of some kind of...cloth.”

The next morning, Gambini is back in court still in his Jersey car-lot finery. “Now, didn’t I tell you next time you appear in my courtroom that you dress appropriately?” the judge asks.

Vinnie is gobsmacked: “You were serious about that?”

For a lower federal court to treat an opinion of the U.S. Supreme Court as a joke is the judicial equivalent of showing up for court in jacket and jeans. Whole Women’s Health v. Hellerstedt, the blockbuster abortion case the Court will hear this week, is a test of whether the Roberts Court is serious about precedent, and indeed about law, in this area. The Fifth Circuit plainly thinks it is not; if the Court affirms the lower court, it will signal open season on the availability of legal abortion across the country.

Hellerstedt is a challenge to a 2013 Texas law that will have the effect of closing 34 of the 40 clinics providing abortions in the state. If that happens, legal abortion will be available only in the state’s four major cities. As a result, nearly 1 million women of reproductive age would find themselves more than 150 miles from a facility that could perform an abortion, and would need to wait more than three weeks for an appointment to receive one.

The restrictions, embodied in a 2013 law called H.B. 2, impose two new requirements on any facility performing abortions. First, the facility must meet all standards for an “ambulatory surgical center”—a type of medical facility, developed during the 1970s, designed to allow low-risk surgery to be performed outside a hospital context. ASCs have to have elaborate surgical facilities and a sterile field in which surgical incisions can take place. Refitting a free-standing abortion clinic as an ASC would be prohibitively expensive, or impossible.

In addition, any physician performing abortions must have “admitting privileges” at a hospital within 30 miles of the clinic. The combination of these requirements has produced the closure of all the freestanding abortion clinics in the state, leaving only six ASCs in major cities that also perform abortions.

Texas says that the purpose of the two new laws is to protect women’s health. It points to the 2013 case of Kermit Gosnell, an abortion provider who was convicted of three counts of murder and one count of manslaughter for causing the deaths of viable infants (and one pregnant woman) at his abortion clinic in Philadelphia.

The abortion providers challenging the law argue that neither requirement responds to medical necessity. ASCs are designed for the kind of invasive surgery formerly performed in hospitals; free-standing clinics have been safely performing abortions for more than 40 years. And whether a physician has “admitting privileges” or not, a patient at an abortion clinic needing emergency care will be smoothly transferred—along with her medical records—to the nearest emergency-care hospital. The American Medical Association, the American College of Obstetricians and Gynecologists, and other medical groups have filed a brief with the Court stating that “neither requirement is supported by accepted medical practice or scientific evidence.” The abortion providers cite statistics showing that abortion in Texas has a demonstrated safety record—and is, on the basis of that record, 100 times safer than carrying a fetus to term.

The challengers filed suit in federal district court in Texas. The procedural history is long and complex; however, what’s important is that the district court blocked the state from enforcing either requirement. It called the new requirements “a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women.” The two requirements, Judge Lee Yeakel concluded, “have the ultimate effect of erecting a substantial obstacle for women in Texas who seek to obtain a previability abortion.”

“Substantial obstacle” is the key phrase here, because it is the Supreme Court’s definition of what is also called an “undue burden” on a woman’s right to choose. In 1992, the Supreme Court in Planned Parenthood v. Casey heard a challenge to Roe v. Wade. In a controlling plurality opinion, three justices “reaffirmed” the right to choose; in reality, they redefined it. From now on, abortion was not a “fundamental right” but a less-protected “liberty interest”; a state regulation of abortion would be struck down only if it imposed an “undue burden”—defined as a “substantial obstacle”—to the woman’s choice. The state could, for example, require a 24-hour waiting period for a woman seeking abortions; it could require doctors rather than others to perform abortions; and it could also require doctors to read patients state-mandated “counseling” material to demonstrate the state’s “profound respect for unborn life.” It could not, however, require a married woman to inform her husband before receiving an abortion. In small minority of cases, the plurality said, that requirement would give the husband an “effective veto” over a choice right that belonged to the woman.

What about a regulation imposed to protect women’s health? The state could mandate the collection of detailed health data about each abortion performed. However, the plurality added, “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

The district court applied that language: Because the medical requirements were “unnecessary” and erected a “high barrier for poor, rural, or disadvantaged women throughout Texas,” it held, they presented a “substantial obstacle” and were thus invalid.

A three-judge panel of the Fifth Circuit, however, lifted the injunction and upheld the two requirements. That judgment is now before the Supreme Court.

The state of Texas asserts that the new rules are designed to protect women’s health and offered evidence to support that judgment. The district judge found the evidence unconvincing. The Fifth Circuit did not exactly reject the lower court’s factual findings; it simply declared that, when it comes to abortion, facts no longer matter:

It is not the courts’ duty to second guess legislative fact-finding, improve on, or cleanse the legislative process by allowing relitigation of the facts that led to the passage of a law. . . . Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to prove that the objective of the law would be fulfilled.

The straight-faced cynicism of that passage is breathtaking. In the abortion context, they suggest, a court is obliged to believe anything the state says; if Texas says the unnecessary is necessary, then that’s it. The Fifth Circuit, having perhaps counted noses, is counting on the Court to approve this solemn parody of the law.

The prospect of a major change in precedent—that is, of a decision overturning Roe and Casey—is nil. But the case could produce a 4-4 split, which would leave the Fifth Circuit’s opinion in place. And that would signal that, in the lower courts, anything goes as long as it says “Health” in the title. The “law” of abortion would be, in effect, whatever legislatures declared it to be.

That’s a compromise that no pro-choice justice seems likely to make. The only way to prevent that result would be for one of the conservative justices to cross and vote either to strike down the restrictions, or to remand the case for decision under a genuine legal standard.

Justice Anthony Kennedy is the last of the three justices who created the “undue burden” standard in Casey. No one who follows the Court can doubt that he finds abortion very troubling, and thinks women sometimes need protection from their own feckless choices. Some of what he has written in abortion cases suggests that “undue burden” to him means less than the Casey precedent suggests.

But no one also doubts that Kennedy takes the Supreme Court, and its place at the center of American law, seriously as well. His head here may conflict with his heart. Whatever one thinks of abortion, what the Fifth Circuit has done is beyond disrespectful to Supreme Court precedent; it verges on old-fashioned defiance. Yo, Supreme Court, that opinion says in effect, We both know you weren’t serious about that rule. We got your undue burden right here.

Would a conscientious judge allow this disrespect? In My Cousin Vinnie, the judge put Joe Pesci in jail.