From the moment President Donald Trump tapped Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court in early July, until the first allegations of sexual assault surfaced against the nominee in mid-September, the most pressing question was whether the would-be justice represented the deciding vote in the decades-long effort to overturn Roe v. Wade. To some on the left, the answer was apparent.
While Kavanaugh, who was sworn in on Monday, will likely play an influential role in shaping the future of abortion rights in America, even some of Kavanaugh’s fiercest Democratic opponents in the Senate understood that the heavy lifting of scaling it back is the work of state legislatures and the lower federal courts. “It matters if they overturn Roe v. Wade, which I doubt they’re gonna do,” Senator Mazie Hirono told ABC’s This Week. But, she rightly added, “the states are very busy passing all kinds of laws that would limit a woman’s right to choose. It’s those things that will go before Justice Kavanaugh.”
That work is already under way.
In September, two federal appeals courts handed down rulings in favor of laws curtailing access to abortion. In the Fifth Circuit Court of Appeals, a three-judge panel upheld a Louisiana law that requires doctors who perform abortions to have admitting privileges at a nearby hospital. An Eighth Circuit panel declined a local Planned Parenthood clinic’s request to block a similar measure in Missouri. Additionally, the full Sixth Circuit is weighing an Ohio law that blocks federal funds for some public-health programs from going to abortion providers.
In the Fifth and Eighth Circuit cases, both courts adopted a narrow interpretation of the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt. That 5-3 decision—the late Justice Antonin Scalia’s seat had yet to be filled—struck down a 2013 Texas law that required clinics that provide abortions, and the physicians who perform them, to have admitting privileges at a hospital within 30 miles. The law would have closed all but a handful of the state’s 40 abortion clinics at the time. In some parts of Texas, tens of thousands of women who sought the procedure would have had to travel more than 100 miles in each direction to obtain it.
The Fifth Circuit had upheld those restrictions as a valid exercise of Texas’s regulatory powers. But the Supreme Court said the lower court did not properly weigh women’s interests in that equation. “We conclude that neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes,” Justice Stephen Breyer wrote for the majority. “Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”
These burdens were no accident, of course. Admitting-privileges laws are often designed to force physicians who provide abortions to close down their practices, and to effectively prevent pregnant women who don’t have the means to travel long distances from getting an abortion. Anti-abortion groups often defend the laws as necessary to protect women’s health, but since serious complications from abortion are rare, multiple federal courts have found that the laws have a minimal effect in furthering that goal. Some federal judges have concluded that admitting-privileges laws may actually have the opposite effect, making it harder for women to safely obtain the procedure.
After Hellerstedt, a Planned Parenthood clinic in Missouri challenged that state’s 2007 law and the regulations that implemented it, which imposed similar admitting-privileges requirements. A federal district-court judge agreed to issue a preliminary injunction against enforcing the law, citing Hellerstedt to justify its decision. The Eighth Circuit quashed the preliminary injunction last month and concluded that the Supreme Court’s ruling may not carry much weight beyond the circumstances in which it was decided.
“Hellerstedt did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional,” Judge Bobby Shepherd wrote for the unanimous panel. “Despite the district court’s assertions to the contrary, Hellerstedt’s analysis of the purported benefits of the law at issue were, of course, related to what the law in that case regulated: abortion in Texas.” As a result, one of the two clinics left in Missouri that still performs abortions announced it would no longer offer the procedure.
After the Hellerstedt ruling, a federal district-court judge ruled that Louisiana’s own admitting-privileges law—Act 620, which passed in 2014—would unconstitutionally hinder women’s access to the procedure if implemented. The court found that four of the five doctors had made a good-faith effort to obtain privileges, but failed to obtain them. As a result, only one clinic would remain open in Louisiana if Act 620 went into effect. Since that clinic’s sole doctor could only perform a finite number of procedures each year, the court estimated that 70 percent of women in the state would be effectively unable to obtain an abortion. “In short, Act 620 would do little or nothing for women’s health, but rather would create impediments to abortion, with especially high barriers set before poor, rural, and disadvantaged women,” the court concluded.
Once again, the Fifth Circuit disagreed. In its decision last month, a three-judge panel concluded in a 2-1 decision that Act 620 didn’t impose an undue burden on Louisiana women’s access to abortion. The ruling is an impressive feat of judicial sleight of hand. Hellerstedt was a clear repudiation of the broad latitude that the Fifth Circuit had offered Texas when it tried to regulate abortion into near-oblivion, but the panel recast the Supreme Court’s ruling as a narrow, fact-bound decision so that it could take a similarly broad approach. It disputed the lower court’s findings, concluding that only one of the physicians had made a good-faith effort to secure admitting privileges. As a result, only 30 percent of Louisiana women would be affected, which amounts to more than 700,000 people. Moreover, the doctors had “failed to establish a causal connection between the regulation and its burden―namely, [their] inability to obtain admitting privileges,” Judge Jerry Smith wrote for the majority.
Judge Patrick Higginbotham, writing in dissent, disputed his colleagues’ factual assessments. He also highlighted the absurdity of their approach to the act’s burdens on women. “The majority today essentially holds that, because private actors (the physicians) have not tried hard enough to mitigate the effects of the act (a conclusion contradicted by the district court’s factual findings), those effects are not fairly attributable to the act,” he wrote. “That position finds no support in [Hellerstedt].”
Most importantly, he concluded that the panel had stretched the Supreme Court’s “undue burden” test for abortion regulations beyond recognition. “At the outset, I fail to see how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but ‘undue,’” Higginbotham wrote. “As I have explained, the majority draws conclusions for which there is no support in the record and rejects the district court’s well-supported findings.” It’s possible that the Fifth Circuit’s decision could reach the Supreme Court, giving Kavanaugh his first chance to weigh in on abortion from the high court.
Both rulings underscore the perilous legal footing on which abortion rights now rest. Roe v. Wade’s last brush with mortal peril came in 1992, when the justices heard Planned Parenthood v. Casey. Four of the court’s conservative members had already indicated in previous cases that they would overturn the 1973 decision if given the opportunity. They did not get the chance to do so. Instead, justices Kennedy, Sandra Day O’Connor, and David Souter sided with the court’s liberals to reaffirm that the Constitution protects a woman’s right to obtain an abortion and to establish the “undue burden” test to weigh regulations of it.
Supporters of abortion rights were relieved, but knew the fight wasn’t over. “I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light,” Justice Harry Blackmun, Roe’s original author, wrote in his concurring opinion in Casey. I noted earlier this year that Blackmun’s prophesied darkness had finally arrived in the form of Brett Kavanaugh. Leading organizations that oppose and support abortion rights both expect Kavanaugh to be more deferential to state and federal restrictions on abortion. That could bode well for Republican legislatures that want to regulate abortion out of existence—and it goes without saying how it bodes for women’s right to obtain one in those states.