The legal battle over reproductive rights is back at the Supreme Court.
Last Thursday, the 5th Circuit reinstated the Texas abortion bill resulting in the immediate closure of 80% of the remaining abortion clinics in the Lone Star State. If the law stands until the appellate process is completed, the closure of those clinics and the damage to women’s ability to exercise their reproductive rights in Texas will be permanent. On Monday, the Center for Reproductive Rights asked the Supreme Court to vacate the lower court’s ruling.
Typically, the Supreme Court considers several factors in its decisions on these applications. So their decisions on these applications offer some clues about the ultimate outcome of a case. If the court grants this application, it could mean the Court will review the case and it could ultimately reverse a lower court ruling. The court could also decide to grant a stay if denial of the request would result in an “irreparable harm.” If, as is likely in this case, the outcome of the case is a close -call, the Court might reach a decision by “balancing the equities.” That’s just a way of saying it will balance the relative harms to all concerned parties with the public’s interest.
The court’s decision on this application is important for the women of Texas, and potentially women across the country. For women in Texas, granting the application means the clinics will re-open and continue to serve women throughout the appeals process. Granting this application doesn’t guarantee that the court will ultimately throw out the fifth circuit’s ruling. In fact, the odds are against it. While the four liberal justices are likely to recognize that the constitution protects a woman’s right to choose, the four conservative judges welcome an opportunity to overturn Roe v. Wade. That leaves the rights of every women in America in Justice Kennedy’s hands. As David S. Cohen once pointed out, when it comes to women’s reproductive rights, Kennedy is likely to vote with the conservatives.
Kennedy has been involved in 12 cases addressing abortion restrictions. In those 12 cases, he has voted on whether 21 different abortion restrictions could take effect. We already know that he voted to strike down Pennsylvania’s husband notification requirement. Besides that, how many of the other 20 restrictions has Kennedy voted to block from taking effect? Exactly zero.
Still, it remains possible that Kennedy will conclude the Texas law goes too far and join the liberals, resulting in a favorable ruling.
. A favorable ruling would mean that women across the country can be assured that a TRAP law as extreme as the one in Texas won’t be coming to their state.
Definitely, a denial would result in an irreparable harm to the women of Texas, since 80% of Texas abortion clinics have closed. It means there would only be seven abortion clinics to meet the needs of women throughout Texas. That’s a drastic reduction from the 41 clinics in Texas not that long ago. In practical terms, women will have to travel hundreds of miles to one of the urban centers that still have a clinic. Even then, it is doubtful the remaining clinics can meet demand for their services. Even if the Court ultimately throws the abortion law out, The Center for Reproductive Rights said this reality would be permanent,
A denial also means the court might not review the case, thus allowing the Fifth Circuit’s ruling to stand. This is unlikely because the fifth circuit’s ruling contradicts rulings made by other circuits. In its ruling, the fifth circuit made that very point, almost as if it was daring the Supreme Court to review the case using the Fifth Circuit’s reasoning.
Justice Scalia is considering this application because he handles emergency matters from that geographic area. He could act by himself or share the application with the rest of the court. We already know that as a conservative member of the court, he believes that Roe v. Wade should be overturned.
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
The Fifth Circuit’s failure to recognize that such severe restrictions cause an undue burden to women who wish to exercise their constitutional right to an abortion is an outrage. This is as much a violation of women’s rights under the constitution as the Ferguson’s police’s five second rule is a blatant violation of Ferguson protestor’s first amendment rights. Imagine the NRA’s outrage if Texas (or another state) were to pass comparable TRAP laws for gun stores, resulting in the closure of all but a handful.
It’s also pretty obvious that ideology plays a role in the conservative court’s decision making. Justice Scalia argued that since the constitution does not provide an explicit protection for women seeking abortions, their right to have one doesn’t exist. Nothing in the constitution specifically allows corporations free speech or “religious freedom.” But that’s different because corporations are people.
Image: Washington Post