As Mississippi Judge Daniel Jordan prepares to hear arguments over whether or not the state has the legal right to enact a law meant to close the only public clinic that provides abortions in the state, many are wondering whether the fact that he was a Republican appointee will play a factor. Jordan, a GOP county chairman, was appointed by President George W. Bush, a fact that some worry could have an effect on his ruling.
But one law professor says that’s pretty unlikely, because the law is too obviously unconstitutional to matter.
The U.S. Supreme Court’s Roe v. Wade decision in 1973 established a nationwide right to abortion. In 1992, the court’s decision in Planned Parenthood v. Casey upheld the Roe decision and allowed states to regulate abortions before fetuses are viable. The 1992 decision also said states may not place undue burdens or substantial obstacles to women seeking abortion, said George Cochran, a constitutional law professor at the University of Mississippi.
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Because of the 1992 ruling, Cochran said Jordan’s decision should be “a very straightforward thing.”
“When you have members of the Legislature and the governor publicly saying that this is an attempt to have an ‘abortion-free’ state, then it’s clear that it’s designed to place an undue burden or substantial obstacle to women seeking abortion,” Cochran said.
Regardless of Jordan’s political leanings, or what he decides on Wednesday, the decision will be appealed. The only question is whether or not the clinic will remain open while that happens.
With November's passage of Amendment 1, Tennessee anti-choicers finally had what they needed to pass the very same restrictive abortion laws the state supreme court had struck down 15 years ago. Or so they thought.
“A woman’s right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tennessee Constitution.”
With those words, written in the landmark decision Planned Parenthood v. Sundquist in 2000, the Tennessee Supreme Court sparked a 15-year-long crusade by anti-choice campaigners to amend the Tennessee Constitution, strip Tennesseans of abortion rights, and bring Tennessee in line with federal law.
Because the court in Sundquist had determined that Tennessee would provide protection for abortion that exceeded that available under federal law, for 15 years the right to an abortion in Tennessee was fundamental. Any law infringing on it was subject to strict scrutiny, the most rigorous standard of constitutional review. During those 15 years, if Tennessee wanted to restrict that fundamental right, it would have had to have a very good reason for doing so—the regulation would have had to be narrowly tailored to further a compelling government interest.
But the idea that laws regulating abortion should be subject to strict scrutiny was neither new nor outrageous. The Tennessee Supreme Court was simply following federal law as it had existed between 1973 and 1992.
In 1973, the United States Supreme Court ruled in Roe v. Wade that government regulation of abortion must be subjected to strict scrutiny. Fewer than 20 years later, a three-justice plurality in Planned Parenthood v. Casey abandoned Roe’s strict scrutiny standard for “undue burden,” which permits a state to restrict abortion as long as it doesn’t place a “substantial obstacle” in the path of a woman seeking an abortion of a nonviable fetus. This is a far more nebulous standard that, in his dissent from the plurality in Casey, Justice Scalia declared to be “ultimately standardless.”
Nevertheless, in 2000 anti-choice campaigners in Tennessee balked at the state supreme court’s view that the Tennessee Constitution offered protection for abortion rights that exceeded the protection available under federal law. They immediately began to push for an amendment to the state constitution that would render its protections for abortion consistent with the protections available under the U.S. Constitution, thus allowing lawmakers to pass harsh measures meant to restrict abortion and reproductive health-care access.
On November 4, 2014, Tennessee voters approved one such amendment, Amendment 1:
Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
With the amendment’s passage, anti-choicers finally had what they needed to pass the very same laws the state supreme court had struck down in Sundquist.
Or so they thought.
In Sundquist, the supreme court struck down abortion regulations that the legislature had previously passed: a mandatory two-day waiting period and the “physician-only” counseling requirement, a provision that an “attending physician” must give patients state-mandated information. The state court of appeals had already struck down physicians’ obligation to tell patients that “abortion in a considerable number of cases constitutes a major surgical procedure.”
Soon after Amendment 1 passed, the legislature introduced bills that would reinstate these regulations.
Under the guise of “informed consent,” the Republican-controlled house and senate introduced SB 1190 and HB 989 in February in order to, in the bills’ own words, “revive and reenact the informed consent and waiting period provisions for abortion that were in effect prior to the Tennessee Supreme Court decision of Planned Parenthood of Middle Tennessee v. Sundquist.” (The legislature also introduced SB 13, which contains the informed consentprovision, including the physician counseling requirement and the “major surgical procedure” statement, but not the two-day waiting period requirement contained in SB 1190 and HB 989.)
Since Amendment 1 obviated the need for these provisions to pass the strict scrutiny standard—no longer do the provisions need to be “narrowly tailored to further a compelling government interest”; they need only surpass the less demanding “undue burden” standard—anti-choicers seem certain that the Tennessee supreme court will have no choice but to declare them constitutional.
But that’s not true.
What these anti-choice campaigners have seemingly failed to consider is that the state supreme court struck down the informed consent and waiting period provisions under both a strict scrutiny and undue burden standard, and the court may very well decide to let that decision stand.
In an opinion published on February 6, Tennessee Attorney General Herbert Slatery III made this point in response to questions posed by a state senator about what the supreme court would do, should the informed consent and waiting period provisions wind their way back up through the appeals process.
“The Tennessee Supreme Court’s ruling that a woman’s right to terminate her pregnancy is protected by the fundamental right of privacy found in the Tennessee Constitution—a right requiring application of the ‘strict scrutiny’ standard—is no longer good law,” Slatery wrote.
But, Slatery pointed out, the state supreme court struck down the “physician-only” counseling requirement as well as the two-day waiting period under both the strict scrutiny and undue burden standards:
In Sundquist, the Tennessee Supreme Court interpreted and construed the requirements of the challenged statutory provisions and concluded that they are constitutionally infirm under the federal undue burden standard—as well as under the strict scrutiny standard. (Emphasis in original.)
Accordingly, an application of stare decisis—Latin for “let the decision stand”—would require that the supreme court follow its prior rulings and strike down these provisions yet again, especially since the language in the 2015 proposed laws is the same as the language struck down in 2000.
Nevertheless, as Attorney General Slatery noted in his opinion, the 2015 court might decide to reexamine the constitutional validity of the reenacted statutes using the undue burden standard, even though the 2000 court had already struck them down under that same standard.
And if that happens, the result cannot be predicted with any degree of certainty: “[T]he undue burden approach is essentially no standard at all, and, in effect, allows judges to impose their own subjective views of the propriety of the legislation in question,” Slatery wrote, citing the supreme court in Sundquist.
To underscore the point, he went on to detail the court findings on the provisions at issue in Sundquist.
In Sundquist, the trial court found the waiting period requirement, the “physician-only” counseling requirement, and the requirement that physicians inform their patients that “abortion in a considerable number of cases constitutes a major surgical procedure” all unconstitutional under the federal undue burden standard and struck them down. These same provisions are included in the newly introduced trio of bills.
The court of appeals, applying the same undue burden standard, struck down the requirement that physicians inform their patients that “abortion in a considerable number of cases constitutes a major surgical procedure.” Unlike the trial court, however, the court of appeals upheld the waiting period requirement and the “physician-only” counseling requirement.
The supreme court, which did not rule on the “major surgical procedure” statement (because the State of Tennessee did not appeal that issue to the supreme court) reversed the court of appeals, striking down both the waiting period and “physician-only” counseling requirements under the federal standard.
So the question becomes, in light of these rulings: What can we expect the state supreme court to do when faced with these laws again?
Every eight years, voters in Tennessee are tasked with the responsibility of deciding whether to retain sitting supreme court justices. In the run-up to the August 7 retention election, conservatives, led by Lt. Gov. Ron Ramsay and backed by Koch-funded Americans for Prosperity, attempted to oust the three judges appointed by Democratic Gov. Phil Bredesen—Sharon Lee, Gary Wade, and Connie Clark—so that Republican governor Bill Haslam could replace them with conservative justices and cement a five-vote conservative majority.
According to the Times Free Press, the retention election was the most expensive in Tennessee’s history, with the three Democratic justices collectively spending $1.13 million to keep their seats.
After the election, Democrats were able to maintain their three-vote majority on the supreme court. What this means for abortion restrictions that the court has not already considered is anyone’s guess.
But when it comes to the informed consent and waiting period provisions that have already been ruled unconstitutional under the federal undue burden standard, anti-choice campaigners like Tennessee Right to Life, which announced in a press release that it hoped to “restore previously passed legislation that was struck down by an activist court,” may be in for a rude awakening.
It seems unlikely that a liberal majority of the Tennessee Supreme Court will reverse course.
Virginia Gov. Bob McDonnell and Attorney General Ken Cuccinelli have had endless meetings, reshuffled the state board of health, and ignored multiple public input sessions in an effort to push through a bill meant to close most of the abortion clinics in the state. Now that McDonnell has finally signed the bill into law, that should be the end of the line for activists opposing the new rule, which will require clinics that provide abortions to rebuild their facilities under the same guidelines as hospitals. But one woman thinks she may still have a way to stop the new regulations from going into effect.
Molly Taylor Vick, a targeted regulation of abortion provider (TRAP) bill opponent, has petitioned the state, arguing that since hospitals are often grandfathered in when new regulations are proposed, refusing to allow reproductive health clinics to do the same is an inconsistent standard. She believes that existing abortion providers should be allowed to operate under the old rules, with the new standards only applying to new structures, or all hospitals should have to be upgraded and made compliant with every regulation on the books.
“The petitioner requests that the State Board of Health (the Board) amend its regulations concerning general building and physical plant requirements for hospitals, contained in the Regulations of Licensure of Hospitals in Virginia (12 VAC5-410-650.) (the Regulations), on the grounds that the regulation conflicts with the provisions of §32.1-127.001 of the Code of Virginia,” reads Vick’s petition to the board of health, which was filed on May 6 and already has over 50 comments.
The question is a fair one, because the board of health at first agreed that existing clinics should be grandfathered in. As a result of that ruling, Cuccinelli refused to certify the regulations, sending it back to the board, which, after resignations in protest of Cuccinelli’s overreach, was filled with even more anti-choice members in order to ensure passage of the original restrictions.
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Just like the abortion providers in the state, if hospitals were not able to be grandfathered into the most recent set of new building regulations, a majority of them built prior to 2005 would be forced to close or update at great expense. Vick’s request is that the rules be applied equitably.
Oppose TRAP, an activist group of which Vick is a member, reiterates:
If existing hospitals CANNOT be grandfathered in under new regulations, this brings into question the legal status of every facility built prior to 2005, many of which will now be forced to undergo the same costly architectural renovations as abortion clinics. This could result in hospitals across the state closing their doors.
If existing hospitals CAN be legally grandfathered as they always have been, then they CAN be legally grandfathered today, and Cuccinelli overstepped his legal and professional authority by refusing to certify those approved regulations. He also overstepped ethical boundaries by threatening to withhold representation if the Board of Health was sued.
VDH must either act to amend hospital regulations to require current construction code of existing facilities or readdress the issue of grandfathering as applied to abortion clinic facilities.
The public comment period for the new petition is through May 26.