Analysis Law and Policy

Justice Kennedy Can Save ‘Roe,’ But Will He?

Jessica Mason Pieklo

Supreme Court Justice Anthony Kennedy may be the last thing standing between religious conservatives and constitutionally protected abortion rights.

In 1992, Justice Anthony Kennedy was part of a coalition of Supreme Court justices that together forged a compromise over abortion rights in Planned Parenthood v. Casey. Now, 23 years later, Justice Kennedy is once again the fulcrum of abortion politics on the Supreme Court. And it is his Casey compromise in the balance, this time in Whole Woman’s Health v. Cole, which the Court agreed to hear Friday.   

Whole Woman’s Health challenges the constitutionality of targeted regulations of abortion providers, also known as TRAP laws. These laws have one specific purpose: to close abortion clinics by making it too cumbersome for them to keep operating.

Texas’ HB 2 is a monster of an anti-abortion omnibus bill enacted in 2013 after a series of special legislative sessions designed to ram the bill through to passage. The Roberts Court will only look at two of its provisions: a requirement that all doctors performing abortions have admitting privileges at nearby hospitals, and a requirement that all abortion clinics meet the same architectural standards as ambulatory surgical centers.

After protracted legal battles with reproductive rights advocates who filed lawsuits against the provisions, the Fifth Circuit Court of Appeals, astonishingly, held the requirements constitutional in Texas’ Whole Woman’s Health case but unconstitutional in a case challenging an almost identical law in Mississippi that would close the only clinic in the state. That case, Currier v. Jackson, was also part of the Court’s conference Friday that resulted in it taking up Whole Woman’s Health v. Cole. So far, the Court has not said whether or not it will hear the Mississippi case as well.

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The very fact that the same federal appeals court, albeit with a different panel of judges, can come to two different conclusions as to whether nearly identical abortion restrictions are undue burdens is pretty illustrative of the mess courts have made of that standard since Casey.

In 1989, a plurality of justices called the framework laid out in Roe v. Wade that prevented government regulation of abortion rights in the first trimester “rigid and unworkable.” Just two years before that, then-President Ronald Reagan called on the Court to overturn Roe altogether, nominating prominent abortion-rights foe Robert Bork to the Supreme Court. Liberals successfully blocked Bork’s nomination and Anthony Kennedy took the open seat, a turn of events that eventually led to the Casey compromise in 1992.

The Casey compromise replaced Roe v. Wade’s trimester framework for when and how states could regulate abortion with a two-part undue burden test, designed to balance the interests of the state in promoting fetal life—a key for conservatives—with preserving the interests of a pregnant person to terminate their pregnancy without unnecessary interference from the state. Specifically, Casey defines an undue burden as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The opinion further explains: “[a] statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”

That standard was watered down considerably in the 2007 decision Gonzales v. Carhart, which upheld the so-called federal Partial-Birth Abortion Act and held that courts should defer to legislators with regards to matters of scientific dispute, opening the door for a flood of junk science in state legislatures to support anti-abortion laws like so-called heartbeat bans and restrictions on medication abortions. There has been so much hyper-regulation, in fact, that many advocates question whether Roe holds meaning anymore. This summer, we will know for sure.

Should the Roberts Court rule for the states and against abortion providers and their patients, the result would be devastating—not just for Texas, but nationwide. Clinics in places like Alabama and Wisconsin that have remained open thanks to court orders blocking similar clinic closure laws from taking effect would be forced to close. States could turn to Mississippi as a model for regulating abortion clinics out of existence within their borders, the Constitution be damned.

Justice Kennedy has not cast a vote for abortion rights since joining the Casey compromise. That should make reproductive rights advocates nervous. But it’s not a sign we are going to lose. In fact, there’s plenty of reasons to think Justice Kennedy is on our side here. For real.

To begin with, the law is clearly on our side, and for Justice Kennedy that will matter. Unlike Gonzales, which focused on one specific abortion procedure, the provisions at issue in Whole Woman’s Health target abortion clinics generally. Supporters of the law will likely argue that it serves the same function in “advancing women’s health” and should be seen, like the federal Partial-Birth Abortion Act, as just more steps toward that goal. The problem for supporters is the evidence in Whole Woman’s Health just doesn’t exist to support those claims, even under Gonzales‘ lenient evidentiary standards.

Casey allows states to restrict abortion to “protect the unborn” prior to viability, and to even try and persuade a patient out of the procedure. But while it is clear that a state can certainly try and dissuade a patient from having an abortion, the decision is also very clear that the state cannot create obstacles for accessing an abortion. In other words, the state has to prove the merits of its argument that childbirth is a better choice for the patient than an abortion. With evidence. It’s not enough for anti-abortion lawmakers in states like Texas or Mississippi to simply assert their clinic-closing regulations will advance patient health and safety. They need the data to back that up.

This limit on state power is absolutely critical, and one that was completely ignored by the Fifth Circuit when it ruled against abortion providers in Whole Woman’s Health. The Casey opinion may authorize the government to protect potential life, but it must do so by means that also recognize and preserve women’s “personal dignity and autonomy.”

Laws that close clinics don’t dissuade a patient who needs an abortion from getting one. They just prevent her from obtaining one. That is a point made blisteringly clear in Whole Woman’s Health’s petition for review and one on which even conservative legal scholars agree. 

As importantly, the Casey compromise is, like Kennedy’s decision last summer striking same-sex marriage bans, grounded in the idea that a person’s dignity is inextricably linked to their liberty. In the case of abortion rights, that means preserving the ultimate ability of the patient to make the decision whether or not to abort. Closing clinics takes that ultimate decision away from the patient and gives it back to the state—and, in doing so, violates that fundamental link between liberty and dignity that is so important for Justice Kennedy.

It is clear Justice Kennedy has grave reservations about abortion. In Gonzales he bought into the junk science of “abortion regret syndrome” and called doctors abortionists. But he ultimately held his line and re-affirmed both Roe and Casey, and I would expect him to do the same here.

Of course, a lot has changed since 1992. Justice Samuel Alito—who as a federal appeals court judge drafted a dissenting opinion in Casey arguing for the constitutionality of spousal notification laws when the case was in the appellate circuit—replaced the moderate Justice O’Connor. John Roberts, who worked in the Reagan administration on the failed Bork nomination, is now the Chief Justice. Much like in 1992, abortion politics is front and center in the cultural and electoral conversation but unlike then, there is no coalition of moderates on the bench.

Instead, the Court is split evenly on overturning Roe and re-criminalizing abortion rights, with Justice Kennedy still right there in the middle.

It’s a lot of power, to be able to dictate the fate of pregnant people’s constitutional rights. And the idea that one man potentially has the ability to say whether clinics stay open or closed should worry all of us, pro-choice or not. But ultimately I think that Justice Kennedy is a conservative, not a crusader. Like the other conservatives who have called on the Court to reverse the Fifth Circuit’s decision in Whole Woman’s Health, he will understand that closing abortion clinics is not advancing patient safety, no matter how it’s spun.

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