//  5/14/19  //  In-Depth Analysis

Take Care is pleased to host a symposium on Reproductive Rights and Justice Storiesan important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

The entire edited collection of Reproductive Rights And Justice Stories is a must read, and its many contributions are impossible to discuss in a small online symposium. The collection expands common understandings about what goes into reproductive rights and reproductive justice; and it forces readers to think critically about the actual women who are seeking reproductive rights and justice. Both of those are important goals and the volume succeeds in achieving them.

I’ll focus here on one observation about the entire collection, but only as it relates to one of the pieces, Cary Franklin’s essay on Whole Woman’s Health v. Hellerstedt, “Whole Woman’s Health v. Hellerstedt and What It Means to Protect Women.” The introduction to Reproductive Rights And Justice Stories describes the edited collection as “nontraditional” in the sense that it “narrate[s] the cases in ways that de-center courts.” Of course there is much to recommend that approach--courts do not act in a vacuum; social movements undoubtedly influence the law (and judicial appointments); it is critically important to understand the real human stories and real human consequences that are part of judicial decisions; reproductive rights and justice can be protected in important ways through legislation and regulation; and so on.

But several recent reproductive justice events underscore the importance of courts as such. The changing composition of courts can embolden other governmental actors, and the courts are a way to prevent or effect change.  People interested in reproductive justice should recognize that, and take care, in emphasizing the importance of state legislatures or motivated interest groups, not to minimize the importance of courts.  Courts may not be able to produce sweeping massive changes on their own--nor should they. But courts can make a big difference to many women's lives.

Franklin’s essay on Whole Woman’s Health reflects the volume’s approach to decentering courts.  The essay begins with state senator Wendy Davis’s epic filibuster of the law that would later be challenged in Whole Woman’s Health and then pivots to the “equally impassioned, though less publicized, efforts of the pro-life movement that have dramatically altered the landscape of abortion provision in the United States.”  That effort, as Franklin describes it, is spearheaded by the pro-life advocacy group Americans United for Life, which “works at the state level, not to ban abortion, but to inundate it with regulation.”

Franklin describes AUL’s effort to “argue that legislators ought to be given wide latitude--indeed, near-total judicial deference--to regulate abortion when they are acting to vindicate the state’s interest in protecting women’s health.” As Franklin recognizes (and as I have argued elsewhere several times), “were courts to accept this logic, it would create a major conduit around the constitutional limitations Roe and Casey imposed on the regulation of abortion.” 

Franklin’s essay is primarily about AUL and its mission--attempting to regulate abortion out of existence. But as she (and other authors in the collection recognize, even in the course of writing essays that attempt to decenter courts), it is impossible to discuss these reproductive rights and justice stories without discussing courts. And any discussion or even reference to courts in these stories makes clear that courts are pretty important to reproductive rights and justice. It was a district court and the Supreme Court that ultimately prevented AUL from getting its way, at least in Whole Woman’s Health. And Franklin’s final section of the piece describes those proceedings.

Franklin’s conclusion notes that AUL and the Texas legislature have pressed on in their attempt to regulate abortion out of existence, and in the second to last paragraph of the essay, she notes that “the Court’s recent shift to the right following the appointment of Justice Kavanaugh gives AUL and other pro-life advocates every reason to persist in their campaign to restrict abortion rights.”  That is the point I wanted to highlight in order to raise some questions about the collection’s choice to describe its approach as decentering courts--the legislative and social movements gained steam because of the changing composition of the courts.

A few additional examples reinforce the point. Take the recent flood of abortion restrictions and litigation involving those restrictions. In March, the Arkansas and Utah legislatures enacted bans on most abortions after 18 weeks of pregnancy. Ohio passed a bill to ban abortions after six weeks; Kentucky did something similar, attempting to prohibit abortion after a heartbeat is detected. Georgia and Alabama recently enacted some of the most draconian restrictions to date—Georgia’s would penalize women who obtain abortions with life imprisonment or death.

In the courts of appeals, there are pending challenges to Arkansas and Texas’s ban on the most common method of second trimester abortions (standard dilation and evacuation); a challenge to Arkansas and Louisiana requirement that abortion providers obtain admitting privileges at nearby hospitals; a challenge to Texas’s fetal-burial law; and a challenge to Mississippi's ban on abortions after 15 weeks of pregnancy. If these provisions do not go into effect, it will be because of the courts. Some of them are not in effect because of courts. These decisions will affect a great many women in important ways. So why describe the volume’s approach in a way that might be read as minimizing the importance of courts?

The makeweight legal arguments in these cases further underscore that something has changed, even since Whole Woman’s Health.  The arguments in Whole Woman’s Health were bad enough (“This law protects women even though there is admittedly no evidence it would have helped any woman, ever.”).  But the arguments that states have been making recently (and courts occasionally accepting) are on a different level.

For example, states are now asking courts to lay the groundwork for outright overruling Roe and Casey.  In Jackson Women’s Health Organization v. Dobbs, the challenge to Mississippi’s ban on abortion after 15 weeks of pregnancy, Mississippi is seeking permission to expand the evidentiary record and introduce facts to challenge Casey’s holding that pre-viability bans are not constitutional.  (This is a revealing argument that underscores that Mississippi understands that its 15-week ban is a pre-viability ban, and that pre-viability bans are unconstitutional, even though it attempts to argue otherwise later in its brief.)

States are also making legal distinctions that don’t pass the laugh test; it’s as if they know they don’t even have to try.  Take this line from Jackson Women’s Health Organization:

Whether the State’s interest in protecting unborn life can ever be sufficient to justify a pre-viability abortion regulation remains an open question under Gonzales [v. Carhart]. The Supreme Court has emphasized on numerous occasions that viability is a central issue, but has never held that viability is the only consideration in reviewing a pre-viability regulation based on protection of unborn life. There is still room, after Casey, Gonzales, and Hellerstedt, for this Court to factor in the State’s legitimate interest in protecting unborn life.

Mississippi has “factor[ed] in” the interest in protecting unborn life by enacting a flat ban on abortions that occur during a period before viability, and has prevented women from making the ultimate decision about whether to end their pregnancies during a pre-viability period.  It is not an “open question” under existing Supreme Court precedent whether that law is constitutional. The fact that Casey, Gonzales, and Hellerstedt did not confront *complete and total bans* on abortion, as opposed to regulations that approximated the effects of complete and total bans on abortion, does not mean that complete bans are lawful.  Casey and Hellerstedt invalidated regulations that were not outright bans. Here is Casey underscoring that pre-viability bans are not permissible:

Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure.

It doesn’t matter, at this point, what the state’s “interest” is; a prohibition before viability is not constitutional.

Again, from Casey:

We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy.

If that wasn’t clear:

Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

There are other examples in Mississippi's brief of how the state feels largely unconstrained by existing precedent, or by any obligation to make sense of that precedent. (If you’re interested in these additional examples, read this post on an amicus brief I helped organize with Melissa Murray.)

There are also other fora in which state officials are signaling that they feel they have already won, or that they are at least on the verge of winning.  Take Texas Solicitor General Kyle Hawkins’s outlandish contribution to the SCOTUSBlog symposium on June Medical Services v. Gee.  You can only get a sense of the audacity of the post by reading the whole thing. For example, he lambasts SCOTUSBlog for stacking the deck against the respondent in the case by holding a symposium on it. SCOTUSBlog’s decision to hold a symposium, he maintains, makes the case out to be significant, which is unfair to the respondent. Never mind that the case has already involved a 5-4 stay decision with a written dissent and that the case has already been covered in multiple national news outlets.  It’s clear from these examples (and there are many more of them) that anti-abortion advocates and the pro-life movement think they have won, and an important part of why they think so is because of the courts. They have five votes, and so they (think they) can do whatever they want.

It is difficult, of course, to say what causes any of this.  Maybe the audacity is just a product of the underlying social movements themselves; or maybe it is the changing and changed composition of the courts.  I tend to think it is both, and that it is important not to minimize the importance of the latter at the expense of the former.  Opponents of reproductive justice understand the importance of courts (Neomi Rao was almost not confirmed to the U.S. Court of Appeals for the D.C. Circuit because she was not obviously anti-abortion enough). Supporters should too.

An anecdote captures some of the asymmetry, and some of the dangers of the asymmetry, between supporters and detractors of reproductive justice when it comes to the courts. By now, most people are familiar with the facts underlying Garza v. Hargan, the case about the Trump administration’s efforts to prevent, or at least indefinitely delay, undocumented minor women in the legal custody of the Office of Refugee Resettlement from having abortions. The administration’s legal arguments ranged from the bizarre to the outlandish--arguing, alternatively, that ORR could decide the women shouldn’t have abortions at all; that preventing the women from having abortions couldn’t be an undue burden because the women could always leave the United States; or that ORR letting the women out of the door to get abortions would mean that ORR was “facilitating” their abortions.

Now consider the fate of two lawyers involved in the Garza litigation--Brigitte Amiri, one of the lawyers for Rochelle Garza, the court-appointed guardian of the women seeking abortions; and Chad Readler, one of the lawyers who argued that it is not an undue burden on women’s access to abortion to keep them locked inside so they cannot physically get to an abortion provider. The Trump administration nominated Readler to a judgeship on the U.S. Court of Appeals for the Sixth Circuit, and the Republican-led Senate confirmed him.

Can you imagine, in the year 2021, a Democratic President nominating Amiri for a judgeship? (Let’s assume, against all odds, that the Democrats retake the Senate, which they should be making a priority.) If not, is it strange that Republicans would appoint someone (and it turns out, several people) who have defended some of the most aggressive and legally indefensible restrictions on abortion, but Democrats would not appoint someone who argued against them?  In one of the most stunning departures from traditions of government lawyering, the Trump administration attempted to seek sanctions against Amiri in the Supreme Court for her role in securing an abortion for one of the women after the D.C. Circuit reinstated the district court order that prevented ORR from interfering with her access to abortion.

Of course the edited collection is not to blame for this asymmetry, and I also don’t mean to suggest they are contributing to it. Still, I am wary of an approach to discussing reproductive rights and justice that suggests to those who care about reproductive rights and justice that courts are not an important part of the equation, or even that courts should not be emphasized in stories about reproductive rights and justice.

As Garza reveals, courts are incredibly important to women’s lives. The women in ORR’s custody were only able to obtain abortions because a court ordered ORR to allow the women to get abortions. And the court--the D.C. Circuit--was able to force ORR to let the women have abortions only because Senate Democrats fought Mitch McConnell’s obstruction of several of President Obama’s nominees to that court (including Judge Millett, who authored the opinion that the full D.C. Circuit largely adopted). Any story about reproductive rights and justice--and any collection of stories about reproductive rights and justice--should take care to emphasize the importance of courts. Else reproductive rights and justice will suffer in the process.

Maybe this is just a matter of framing; many of the essays in the edited collection, like Franklin’s, suggest that courts are important--sometimes in passing, other times implicitly. But then why risk obscuring that fact by adopting an approach that sounds like it deemphasizes courts in the process of decentering them, rather than one that emphasizes how courts may be a necessary part to achieving reproductive rights and justice?

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