Last week a federal district court ruled unconstitutional a Texas provision that bans the most common form of second-trimester abortions. The decision was an important win in what is emerging as the next big fight over abortion rights: criminalizing abortion procedures and providers in the name of promoting “fetal life.”
But it’s not the end of the road. With the Fifth Circuit Court of Appeals sitting in the middle of this fight, there is a good chance it will make its way all the way up to the U.S. Supreme Court. If and when that happens, abortion rights advocates have to hope Justice Anthony Kennedy is on their side—and it’s not so clear he will be.
Anti-choice advocates pivoted to non-intact dilation and evacuation (D and E) bans like the one in Texas almost immediately following their 2016 loss in Whole Woman’s Health v. Hellerstedt. In Hellerstedt, the Supreme Court struck as unconstitutional provisions of a different Texas law that required abortion clinics to meet the same architectural standards as stand-alone surgical centers, even if the clinic provided no surgical services, and that required doctors performing abortions to have admitting privileges at nearby hospitals.
Despite Texas lawmakers’ claims, the 5-3 majority in Hellerstedt found no evidence that the requirements advanced patient safety. The Court ruled that for restrictions to survive constitutional scrutiny, it was not enough for lawmakers to simply assert patient safety as a justification for attempting to curb abortion access—they also needed evidence to back up those assertions.
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The Hellerstedt decision effectively cut off the ability of anti-choice lawmakers to target abortion clinics for closure, reduce access to abortion services and other reproductive health care, and then claim that doing so is necessary to protect patients.
Promoting patient safety, though, is only one part of the constitutional analysis. States can also pass laws that restrict abortion access, even prior to viability, if those restrictions advance the state’s “profound” interest in promoting fetal life without enacting an “undue burden” on would-be patients. This is the part of the analysis anti-choice advocates are now testing with their D and E bans.
The idea of a “profound” state interest stems from Roe v. Wade. In particular, it arose the last time anti-choice advocates had a win before the Supreme Court: in 2007 in Gonzales v. Carhart. Gonzales upheld the federal “partial-birth” abortion ban, an unscientific term developed by anti-choice advocates to describe an intact D and E abortion—also known as a “D and X” abortion—a relatively uncommon method of ending a pregnancy in the second trimester.
But before Gonzales came Stenberg v. Carhart, the 2000 decision that struck down Nebraska’s “partial-birth” abortion ban. The Nebraska law contained no exception for the health of the pregnant person, a feature that would doom it before the a majority of the Court. Anti-choice advocates took immediate notice of why the law had failed and regrouped, passing the federal Partial-Birth Abortion Ban Act of 2003. That law was modeled almost entirely on the unconstitutional Nebraska statute with one difference: It contained a small exception for when the pregnant person’s health was in danger. Four years later, the Supreme Court upheld the new version of the ban in Gonzales after striking the nearly identical one in Stenberg.
In both cases, however, Justice Kennedy voted to uphold the bans, siding first with the dissent in Stenberg and then the majority in Gonzales. In Stenberg, Kennedy authored a dissent deeply critical of the majority for framing the analysis of the constitutionality of the ban from the perspective of an “abortionist” rather than the state’s interest in regulating the medical profession so that it does not become “disdainful” to life, “including life in the human fetus.” In his dissent, he describes the procedure at issue as deserving of “the most severe moral condemnation, condemnation reserved for the most repulsive human conduct.”
Kennedy’s condemnation wasn’t limited to only “partial-birth” abortions, however. He extended it to all D and E procedures. He then picked this thread up again in his majority opinion in Gonzales, writing, “No one would dispute that, for many, D and E is a procedure itself laden with the power to devalue human life.”
Still, although Kennedy condemned D and E abortions generally, the Court’s decision to uphold the federal ban pre-viability was based in part on the availability of non-intact D and E abortions around the country—precisely the procedure under attack right now in Texas’ Whole Woman’s Health v. Paxton.
Earlier this year, Texas lawmakers passed their D and E ban as part of SB 8, a piece of Frankenstein legislation stitching together as many anti-abortion provisions as possible. Reproductive rights advocates challenged the D and E provision in the law almost immediately, arguing it was an unconstitutional pre-viability ban because the result of the measure would be to effectively cut off second-trimester abortion care entirely. Because D and E abortions happen when a patient is between 15 to 20 weeks pregnant and the fetus not viable, the law basically bans abortion before viability. Texas lawmakers defended the measure, arguing that while the law did target the most common form of second-trimester abortion, other, less common, methods of terminating a pregnancy in the second trimester exist. Therefore, they said, the law was not a pre-viability ban. Furthermore, the state argued, the ban was a legitimate exercise of its interest in promoting fetal life.
In August, a federal district court agreed with the plaintiffs that the measure was an unconstitutional pre-viability ban and temporarily blocked the measure from taking effect. Last week’s decision made that temporary order permanent.
The opinion issued by Judge Lee Yeakel blocking the measure is as airtight as reproductive rights advocates could ask for. Yeakel, a President George W. Bush appointee, is the same judge that ruled against the state of Texas again and again in Hellerstedt. Similar to Hellerstedt, in Paxton, Yeakel determined that Texas had failed to offer any evidence to support its claims that banning D and E abortions promoted its interest in fetal life without unduly burdening a patient’s right to chose. That is because, Yeakel determined, the evidence failed to show that the other methods advanced by the state for terminating an abortion were available and safe. Therefore, Yeakel ruled, the D and E ban had the effect of banning most second-trimester abortions.
The state of Texas immediately appealed the decision. If history is any guide, the Fifth Circuit Court of Appeals will find a reason to side with the state and overturn the order blocking the ban. And if it doesn’t, attorneys for Texas will push the Roberts Court to do so.
There is at least one good reason, however, for the Roberts Court to stay out of this fight. At least seven states other than Texas have enacted D and E bans. And in those states where the laws have been challenged, federal and state courts have been unanimous in finding them unconstitutional. That means there’s no legitimate legal disagreement as to the constitutionality of D and E bans, which means there’s no dispute for the Court to settle.
But anti-choice activists didn’t spend all that money getting Associate Justice Neil Gorsuch appointed to the bench to have the Court pass on a fight like the one in Paxton, though. Given the facts that Justice Samuel Alito is the justice who refers petitions from the Fifth Circuit to the Supreme Court for review, and Justices Clarence Thomas and John Roberts are reliably anti-choice votes along with Gorsuch, anti-choice advocates will likely have four votes to take the case on. The question is whether they have the fifth vote from Justice Kennedy to win.
In Hellerstedt, Justice Kennedy voted with the majority to strike the Texas abortion restrictions. He didn’t author any separate opinion, so presumably he agreed with Justice Stephen Breyer’s opinion that made it very clear that lawmakers must have evidence and data to back up claims that the abortion restriction they are advancing actually serves the state interest they assert—in that case, advancing patient safety. In Paxton, Texas has again failed to offer any evidence to support its reasoning, so hopefully Kennedy would vote to strike the D and E ban as he did the admitting privileges and surgical center requirements. But again, in Stenberg and Gonzales, he made it very clear he supports the power of the state to regulate away pre-viability abortion procedures in the name of advancing its interest in fetal life.
Overall, the D and E bans could force Kennedy to decide which he values more: evidence-based lawmaking or the power of the state to promote fetal life.
There is another lesson to draw from Stenberg, Gonzales, and the fight over “partial-birth” abortion. Anti-choice advocates started that fight in the states, and when they lost, they evolved their strategy and advanced it through federal legislation. Should the Court take Paxton or a similar case and rule against the bans, there is every reason to think anti-choice advocates will follow the Stenberg/Gonzales playbook and advance a slightly revised federal version.
Those are a lot of “ifs.” And by their nature, cases take time. Probably long enough, in fact, for a Supreme Court justice or two to retire. If conservatives get their way, that will lead to a Court willing to undo abortion rights altogether.