Cases the New Supreme Court Justice May Face

Kay Steiger

An important consideration related to who ultimately fills Souter's seat centers on what issues the Supreme Court would face in the near future.

The short list for Justice
Souter’s retirement has been leaked-all of the candidates named
favor upholding Roe v. Wade and five of the six on the list are
women. That certainly bodes well for pro-choice advocates. "What I’m
hoping is that what we do is Souter or better," said Janet Crepps,
deputy director of the U.S. legal program for the Center for Reproductive

An important consideration
related to who ultimately fills Souter’s seat centers on what issues
the Supreme Court would face in the near future.  Rewire
examined some of the cases being challenged in state or other appellate
courts that might make their way to the Supreme Court over the next
few years. It is, of course, nearly impossible to predict which cases will come before the Supreme Court. Thousands of cases are
brought to the court each year and only a handful are heard.  Nonetheless, here
we highlight some of the possibilities. 

Outright Abortion Bans and
Fetal Personhood Amendments

"It’s hard to predict what
might make its way up to the court," said Gretchen Borchelt, senior
counsel at the National Women’s Law Center.  "Certainly we
know that the anti-choice side keeps trying to propose some flat-out
unconstitutional ban on abortion that’s directly challenging Roe and
will be litigated in the courts." 

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South Dakota, which defeated
two outright abortion bans in 2006 and 2008, both of which would have
directly challenged Roe, is one state where anti-choice activists
have targeted their efforts in recent years. "But this year in the
state legislatures we’ve seen a different attempt, which is [to] establish
fetal personhood," Borchelt said.  

North Dakota battled over such legislation earlier this year. This type of legislation,
drawing inspiration from a ballot initiative that was defeated in Colorado
last fall, usually seeks to define a person as beginning as a fertilized
egg.  The approach is problematic for a number of reasons. "There
are bills that would not only ban abortion but would have far-reaching
consequences and would get into other life decisions like birth control,
they could trigger investigations into miscarriages, ban in vitro fertilization,
all those things," Borchelt said. The bill was ultimately defeated
in the state senate. 

"They’re not giving up [such
fetal personhood legislation]," she said. "We’ve seen that in a
lot of state legislatures this session." Other states that introduced
such legislation included Maryland, South Carolina, Montana, and Alabama.
Though none of the states successfully managed to pass laws that would
have defined so-called "fetal personhood" a national organization,
Personhood USA, continues to put forth efforts to pass such legislation
in the states.  According to their website, Personhood USA’s
goal is to introduce such legislation in every state. While it is unlikely
that their efforts in states like Maryland, which has a Freedom of Choice
Act in place, will succeed, they have been more successful in states
like North Dakota. As Borchelt notes, such "personhood" legislation, if passed, would
not only be a direct challenge to Roe v. Wade, but it would also
force courts to rule on the constitutionality of birth control and in
vitro fertilization, among other laws. 

Mandatory Ultrasound Viewing 

One state that is currently
battling out abortion legislation in the courts is Oklahoma, where
a law that places limits on abortion was
passed last year, vetoed by the state’s governor and then overridden
by the legislature.   The law places restrictions on the administration
of a medical abortion, requires women seeking an abortion to view an
ultrasound, and places other restrictions on women’s right to sue
a provider if he or she intentionally withholds information about the
pregnancy, particularly if the fetus has developmental defects. This
kind of legislation seeks to push the boundaries in the Supreme Court’s
1992 ruling in Planned Parenthood v. Casey, in which Souter and
two other justices joined together to simultaneously preserve Roe v.
Wade while opening the doors for states to place limits on the right
to abortion, so long as the laws do not place an "undue burden"
on the woman’s ability to obtain an abortion. 

The Center for Reproductive
Rights is currently challenging Okalahoma’s law in state courts and
the case is known as Nova Health Systems v. Brad Henry.
There are two particularly objectionable components to the Oklahoma
legislation, according to Crepps.  First, it requires doctors do
a "follow up examination" on women receiving mifepristone (commonly
known as RU-486) for medical abortion, despite the fact that no such
examination is required either by federal regulation recommends or by
sound medical practice.  The American College of Obstetricians
and Gynecologists, for example, does not recommend such a protocol.
Similar legislation was passed in Ohio in 2004 that is
currently being challenged by Planned Parenthood. 

The law mandates ultrasounds
for surgical abortions, requires that women undergoing abortion view
the ultrasound, and requires physicians to describe the ultrasound to
her out loud.  

"Forcing a doctor to say
and forcing a woman to listen to an ultrasound description when neither
of them are interested or think it’s a good idea or necessary for informed
consent is a violation of both their privacy rights but [also] of their
free speech rights," Crepps said. 

Legislation asking women to
view ultrasounds is increasingly common.  Today, half a dozen states,
including South Carolina and Michigan, have milder versions of Okalahoma’s
ultrasound legislation. Kathleen Sebelius, in one of her last acts as
governor of Kansas before being confirmed as secretary of the Department
of Health and Human Services, signed a law that mandates offering women the option
to view an ultrasound before undergoing an abortion.  But if Okalahoma’s
legislation is upheld in state court, other states might begin to copy
it.  "Obviously anti-abortion people will be watching [the Okalahoma]
case as well as the Ohio case and seeing if they can pursue that as
a strategy," Crepps said. 

Because Okalahoma’s law is
being challenged in state courts, it is unlikely the Supreme Court will
rule on it. But if the anti-choice community is successful in defending
this law, copycat legislation in other states could present a challenge
that could make its way eventually to the Supreme Court. 

Pharmacist Refusal Laws 

In the Ninth Circuit, pharmacists
are challenging
a law
that ensures
a woman’s access to birth control, including emergency contraception
(commonly known as "Plan B"), because they say it interferes with
their religious rights. 

Because of the challenge, the
court has issued a temporary injunction. That means pharmacists can
still refuse to fill birth control prescriptions or sell emergency contraception
to women until the court issues a ruling on the case.  

Such legislation touches on
the midnight regulation in the Department of Health and Human Services
that the Bush administration put into place.  If the rule is rescinded,
as the Obama administration has pledged to do, then organizations that
supported it may challenge the legislation all the way to the Supreme

Partial-Birth Abortion Ban 

Although the Supreme Court
has already upheld the federal Partial-Birth Abortion Ban in their 2007
ruling on Gonzales v. Carhart, Virginia passed a similar ban
that did not include a health exception in 2003. The law has been challenged by the Center for Reproductive rights
in a case known as Richmond Medical Center v. Herring. An appellate
court ruled last May that the Virginia ban placed
an "undue burden" on a woman’s right to obtain an abortion.  

If the Supreme Court decides
to hear the case, the ruling on Virginia’s ban could determine how
courts interpret the federal partial-birth abortion ban. 

The battles that are currently
taking place in state and appellate courts are important. These are
the cases that could end up before the Supreme Court.  The next
justice, whoever that might be, will be facing important decisions about
how women access reproductive health care.  Perhaps Crepps is right
and Obama will appoint and the Senate will confirm someone who is "Souter
or better" on women’s rights.

News Law and Policy

Court Blocks North Carolina’s ‘Discriminatory’ Voter ID Law

Imani Gandy

“[T]he new provisions target African Americans with almost surgical precision," Circuit Judge Diana Gribbon Motz wrote for the court, describing the North Carolina GOP's voter ID law.

A unanimous panel of the Fourth Circuit Court of Appeals struck down North Carolina’s elections law, holding that the Republican-held legislature had enacted the law with discriminatory intent to burden Black voters and that it therefore violated the Voting Rights Act of 1965.

The ruling marks the latest defeat of voter ID laws passed by GOP-majority legislatures across the country.

“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Circuit Judge Diana Gribbon Motz wrote for the court.

HB 589 required in-person voters to show certain types of photo ID beginning in 2016, and either curtailed or reduced registration and voting access tools that Black voters disproportionately used, including an early voting period. Black voters also disproportionately lack photo IDs.

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Republicans claimed that the law was intended to protect against voter fraud, which has proven exceedingly rare in Republican-led investigations. But voting rights advocates argue that the law was intended to disenfranchise Black and Latino voters.

The ruling marks a dramatic reversal of fortune for the U.S. Justice Department, the North Carolina chapter of the NAACP, and the League of Women Voters, which had asked the Fourth Circuit to review a lower court ruling against them.

U.S. District Court Judge Thomas Schroeder in April ruled that plaintiffs had failed to demonstrate that the law hindered Black voters’ ability to exercise political power.

The Fourth Circuit disagreed.

“In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees,” Motz wrote. “This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

The Fourth Circuit noted that the Republican-dominated legislature passed the law in 2013, immediately following the U.S. Supreme Court’s ruling in Shelby v. Holder, which struck a key provision in Section 4 of the Voting Rights Act.

Section 4 is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia before making any changes to election laws.

The day after the Supreme Court issued its ruling in Shelby, the Republican chairman of the Senate Rules Committee announced the North Carolina legislature’s intention to enact an “omnibus” election law, the appeals court noted. Before enacting the law, however, the Republican-dominated legislature requested data on the use, by race, of a number of voting practices.

After receipt of the race data, the North Carolina General Assembly enacted legislation that restricted voting and registration, all of which disproportionately burdened Black voters.

“In response to claims that intentional racial discrimination animated its actions, the State offered only meager justifications,” Motz continued. “[T]he new provisions target African Americans with almost surgical precision.”

The ruling comes a day after the Rev. Dr. William J. Barber II, president of the North Carolina chapter of the NAACP and one of the primary organizers of Moral Mondays, gave a rousing speech at the Democratic National Convention that brought convention goers to their feet.

During a protest on the first day of the trial, Barber told a crowd of about 3,500 people, “this is our Selma.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.