Analysis Law and Policy

Bad Law Brings Tough Choices: Litigating Abortion Restrictions in a Post-Roe World

Jessica Mason Pieklo

Two recent decisions to drop legal challenges to abortion restrictions illustrates the difficult choices facing reproductive rights lawyers in a legal climate hostile to abortion rights.

The 40th Anniversary of Roe v. Wade provides an opportunity to reflect, and celebrate, a hard won legal victory that was intended to secure the right of all women to make informed decisions about their pregnancies with minimal government interference. But in just two decades, the legal landscape has shifted significantly, which means reproductive health advocates are left with a difficult question: Would the federal courts today support a woman’s right to privacy and to chose an abortion, and if not, how can we effectively challenge reproductive rights restrictions in a climate hostile to the idea that women hold privacy rights at all?

Two recent cases, in two separate states, highlight just how difficult the terrain has become for waging these legal battles. In both South Dakota and Kansas, attorneys challenging recent abortion restrictions have had to drop those challenges in the face of legal decisions that have made it clear the court has no problem adjudicating out of existence a woman’s right to terminate a pregnancy. In South Dakota advocates dropped a challenge to the state’s 72-hour waiting period while in Kansas, attorneys dismissed claims that the state’s recent law prohibiting abortion services from inclusion in comprehensive health insurance policies after a decision by the district court made continuing the legal challenge all but impossible.

The Kansas case especially illustrates the challenges facing reproductive rights litigators. In that case the ACLU argued the Kansas law was unlawful both because it is discriminatory against women to single out for exclusion from insurance coverage a service only women would need and also because the restriction had no purpose or effect other than to create a substantial obstacle for a woman to exercise her right to chose abortion. Those arguments, while grounded in decades of case law and facts, faced a hostile district court that was quick to dismiss the sex discrimination claim first. By relying on legal precedent from the Ninth Circuit Court of Appeals the court ruled that when challenging abortion restrictions plaintiffs had, essentially, only one line of attack and that was to challenge the restriction as an undue burden as laid out in Planned Parenthood v. Casey. That means that despite the fact that women face specific gender discrimination as a result of restrictions like the comprehensive insurance ban, the federal courts have apparently cut off from access the ability to challenge those restrictions as a violation of constitutional equal protection guarantees.

The Ninth Circuit Court of Appeals encompasses California, Arizona, Nevada, Idaho, Montana, Oregon, and Washington and is not binding on Kansas state or federal courts, but that didn’t stop the district court in Kansas from relying on it anyways. And that, as Brigitte Amiri, Senior Staff Attorney for the American Civil Liberties Union Reproductive Freedom Project explained to Rewire is just part of the challenge they faced in the litigation. “We face these very difficult legal standards that have developed, specifically with regard to privacy rights in abortion claims. For organizations that means a constant calculation of how to challenge these laws” Amiri said. “We were obviously disappointed with the district court’s decision, but decided in the face of that we needed to look for other ways to protect a woman’s right to choose in Kansas.”

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After the district court ruled the ACLU could not continue with its sex discrimination claim it turned its attention to the argument that the law was passed with the improper purpose of creating a substantial obstacle to a woman’s right to chose. That claim was also rejected by the court, which held that the evidence, including a nominal drop in insurance rates for all Kansans once the ban went into effect, simply would not support a claim that the legislature acted with the improper purpose of creating substantial obstacles to accessing abortion care. The court had set for trial the issue of whether the law as enacted had the effect of creating a substantial burden on that access, but by now the writing was on the wall.

That bleak legal landscape where unnecessary mandatory ultrasounds are couched not as creating an undue burden for women but empowering them and where judges unilaterally declare fetal rights poses very serious challenges in pushing back against attacks on abortion access and one that Amiri soberly assessed. “We need a change at the Supreme Court level for assessing abortion restrictions,” Amiri said. “In the meantime, we have to try and prevent these restrictions from getting passed to begin with. We litigate as a last resort.”

Amiri pointed to recent successes in states like Michigan, Virginia, and Oklahoma where voters and activists worked together to prevent passage of more abortion restrictions. “That kind of front-line attack, we need to keep that up” said Amiri.

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