The lawyer who argued the landmark Casey decision weighs in on the Texas abortion case
I was admittedly apprehensive last week about attending the oral arguments in Whole Women’s Health v. Hellerstedt, the Supreme Court case challenging abortion restrictions in Texas that have closed more than 20 clinics since the law’s enactment in 2013. Nearly a quarter century ago, I argued Planned Parenthood v. Casey before the Supreme Court. Despite the widespread belief at the time that the Court would use Casey to overrule Roe v. Wade and permit states to ban abortion in most circumstances, the courageous trio of Justices Kennedy, O’Connor, and Souter defied expectations and preserved legal abortion. At the same time, they enabled states to enact abortion restrictions so long as they did not in “purpose or effect … place a substantial obstacle in the path of a woman seeking abortion.” The meaning of Casey and its new undue burden test is squarely before the Court in the Texas case, and women’s ability to obtain reproductive health care lies in the balance.
Many years ago, Justice Blackmun noted that the right to choose abortion was fragile and that we are likely to take "two steps forward and one step back" as women fight for gender equality. Today, more than at any time in recent years, we can see that the securing of constitutional liberty is not a linear endeavor.
In the decades since Casey, there has been remarkable, positive change, much of which I could not have dreamed of in 1992—the legalization of gay marriage, the election of the first black President, and the fact that today women are more active politically than ever before and are running for a wide range of elected positions. In 1992, Kleenex box–sized cell phones and fax machines were the dominant ways we communicated, yet today computers in our pockets let us reach legions with a mere touch of a button. In the 1990s, insurance policies rarely covered birth control. Today, Obamacare ensures that all forms of approved contraception are available, and more women have access to health care than ever.
Nevertheless, in this year when anger is the dominant theme in the political debate, we see the challenges of sustaining positive change for progressive causes, and abortion rights are in jeopardy. The rise of the Tea Party and Republican control of state legislatures and statehouses has given the right ample opportunity to push its agenda in the states and counter nearly all rational discussion in Congress. We see the NRA and anti-immigrant forces stronger than ever and violence against people of color and women and girls continuing at alarming rates.
The rise of right-wing political control in the states and Congress has meant that incendiary rhetoric and power politics rule the day, and as a consequence hundreds of new bills restricting choice were introduced in the last several years. The number of coordinated attacks on abortion and birth control have surpassed the highs of the early 1990s, when 800-plus restrictions were introduced as the High Court seemed poised to overrule Roe. Today, the aging of doctors willing to perform abortions and mounting legal restrictions threaten to make safe, legal abortion unavailable in wide swaths of America.
Last week's arguments in the Supreme Court were a microcosm of this situation. The members of the deeply divided court seemed stuck in their own visions of reality, buffered by a differing view of the facts. Justice Alito looked for specific testimony from clinic owners that the passage of the law caused the closure of clinics. The fact that 12 clinics closed within days of the law going into effect was not sufficient for him to invalidate the law. Where's the evidence?, he kept asking. In contrast, Justice Kagan saw this same data as almost proof perfect. “… you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”
The debate over whether the remaining clinics could pick up the slack created by the closures was equally polarized. The solicitor general of Texas argued that since Planned Parenthood had built new, larger, ambulatory surgical centers in three metropolitan areas, women had the ability to receive care. The fact that women had to travel up to 200 miles on two separate occasions to obtain these services was not a big deal to the state’s lawyer and the conservative Justices. (That is like requiring a woman in Baltimore to go to New York, or a woman in Reno, Nevada, to go to San Francisco, twice in a week.)
To Justice Sotomayor, requiring women to travel to a hospital-like setting to take a pill seemed even more ludicrous and certainly "undue." Nor could she or the other women Justices understand Texas’ insistence that abortion be performed in an ambulatory surgical center while at the same time allowing the performance of more dangerous medical procedures in doctor’s offices.
And perhaps this was the single most significant difference between the arguments held on Wednesday and my argument in Casey. In Casey, Justice O'Connor was the lone woman on the Court. This year we had three pro-choice women willing to ask hard questions of the Texas solicitor general and, as the Constitution requires, look closely at how the law actually affects women’s ability to get an abortion. Justices Kagan, Ginsberg, and Sotomayor emphatically pushed the state to justify its position, and made arguments aloud, intending to influence Justice Kennedy, whose vote is determinative but uncertain. Without doubt, having a critical mass of women on the bench matters, particularly Justices who understand what it is like for a woman to face an unintended pregnancy.
There are three possible outcomes in the Texas case—a tie vote, assuring that the Texas law is upheld (although not binding precedent for other courts); a remand for the taking of additional evidence; or a 5-3 decision finding the law unconstitutional. Whatever happens, the battle for reproductive liberty will not be over.
Although the presence of three bold women on the bench changed the tenor of debate inside the courtroom, the political context in which the case sits remains strikingly similar to Casey. In 1992, we feared that there were five votes on the Court to overrule Roe, and we were looking to preserve reproductive rights through the political process in both Congress and state legislatures. Today, with the death of Justice Scalia, and the unwillingness of the current Senate to consider an Obama nominee, the balance of the Supreme Court will depend on the results of the next election. The next President and the willingness of the Senate to confirm his or her nominee will set the direction of our law over the next 40 years and may determine whether women will have access to abortion and reproductive freedom—a critical fact to remember as campaigns unfold in coming months.
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