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Wednesday, September 16, 2015

Texas, Abortion, and the Supreme Court – Part III

 In this final post on the certiorari petition in Whole Women’s Health v. Cole, I want to consider the likelihood that the Supreme Court will take this case, and if it does, what it is likely to do with it.

I think it’s a very good bet that the Supreme Court will decide to hear this case this Term, perhaps in conjunction with one of the other cases that deals with admitting privileges laws – either Currier v. Jackson Women’s Health Organization, another admitting privileges case, in which the Fifth Circuit actually enjoined an admitting-privileges requirement that would have shut down the last remaining abortion clinic in Mississippi, or Planned Parenthood v. Van Hollen, in which the Seventh Circuit enjoined an admitting-privileges law. However, both of those cases are still at the preliminary-injunction stage, unlike Whole Women’s Health, which was rushed to trial on an expedited schedule. Still, SCOTUS has been holding onto the petition in Jackson Women’s Health Organization since the spring and may well decide to consolidate it with Whole Women’s Health. (No petition has yet been filed in Van Hollen, as that case is back in front of the district court and scheduled for trial.) 

            There are a lot of reasons for the Court to grant cert in at least one of these cases.

There is a clear circuit split, both in outcomes and, as noted in my prior post, in how the relevant legal standard is applied. Moreover, the Supreme Court has not waded fully back into the abortion fray since Gonzales v. Carhart in 2007, and it hasn’t really clarified the undue burden standard since introducing it in Planned Parenthood v Casey in 1992. In the past decade or so, a whole new slew of abortion restrictions has been tried out in the states, and uncertainty reigns in the lower courts. 

So what will happen if and when the Supreme Court hears one of these cases? That depends on Justice Kennedy, as usual. There is some reason for the abortion clinics and providers to feel optimistic, as Kennedy, one of the authors of the joint opinion in Casey, must think “undue burden” means something, and the facts in the Texas and Mississippi cases, in particular, are extreme. If he is ever going to find an undue burden is imposed by a purportedly neutral health regulation, it is probably going to be in a case like these. Moreover, these cases deal with access to all abortions, the overwhelming majority of which occur in the first trimester; they don’t involve later abortion procedures—an issue that seems to have caused Kennedy to peel off from his pro-choice colleagues on the Court the Carhart cases in 2000 and 2007. And Kennedy has not been afraid to show some liberal stripes lately, as his opinion on same-sex marriage in Obergefell demonstrated. 

            At the same time, there is reason for the clinics to be concerned. First, the undue burden standard may be ripe for revisiting. If the Court decides to re-open that can of worms, there’s no saying where its jurisprudence may end up. Perhaps more importantly, Kennedy is a big believer giving deference to legislatures—particularly on medical and scientific issues. Such deference was central to his dissent in Stenberg v. Carhart (the 2000 case striking Nebraska’s so call partial-birth abortion ban), for example, and he struggled with the same issue in Gonzales v. Carhart (the 2007 case upholding the federal Partial Birth Abortion Ban Act). Although he ultimately decided not to rely on Congress’s demonstrably false factual findings, he did so reluctantly, continuing to suggest that Courts need to act modestly in the fact of medical and scientific “uncertainty.” If he sees the admitting privileges issue as one of legislatures’ power to decide on the most appropriate measures to advance health and safety in the face of medical or social scientific uncertainty, the prospects for the plaintiffs may be considerably more grim.

Posted by Jessie Hill on September 16, 2015 at 02:33 PM | Permalink


You seem to be referencing something Justice Stewart said & even then he corrected himself. Roe v. Wade itself had a more complete discussion. So, I have great doubts a single misstatement in an oral argument by not Blackmun is the reason Justice Scalia and Thomas don't agree with you regarding the constitutional status of the unborn.

Posted by: Joe | Sep 22, 2015 1:08:14 PM

The fact that speciation occurs at conception, and that a human person can only conceive a human person, is not a matter of opinion.


Joe, it was during oral arguments that Justice Blackmun made the statement that persons are naturalized citizens. No doubt, it was this misrepresentation of fact that led to the error in both substantive and procedural due process.

Can precedent be based upon a misrepresentation of fact?

Posted by: Nancy | Sep 20, 2015 3:15:04 PM

Jessie Hill et al, thank you for a very interesting discussion on this topic! A chill wind blows indeed!

Posted by: Michael | Sep 19, 2015 9:34:33 PM

Pranav, that's true - Roberts joined Kennedy's opinion in Gonzales and did not join the Thomas/Scalia concurrence. But I don't think that means that he's going to be the deciding vote in this case. The Justices are unlikely to revisit Roe and Casey (i.e., basic the right to choose) here, since this case doesn't present that issue. On the admitting privileges issue, I think he's going to be in the same camp with the Scalia/Thomas/Alito.

Posted by: Jessie Hill | Sep 18, 2015 9:36:10 AM

"That depends on Justice Kennedy, as usual"

What about the Chief? In Gonzales didn't he decline to join the Scalia/Thomas opinion reversing Casey & Wade?

Posted by: Pranav | Sep 18, 2015 8:02:55 AM

The right phase is "a chill wind blows."


Not a single justice has held that a constitutional "person" -- not some other sort of person to be clear -- includes an embryo or fetus. Roe v. Wade was 7-2. Not a single justice then or since then has said otherwise.

And, Roe v. Wade does not say that "a human person is a naturalized citizen" and nothing else. It cites that as ONE example of various references in the Constitution, not all of them applying to citizens. Strong opposition to abortion is not really advanced by confused potshots at Justice Blackmun.

To be more specific to the matter at hand, Gonzales v. Carhart cited the "substantial obstacle" test & even in the sensitive area that clearly had emotional salience for Justice Kennedy (as seen by his dissent in the previous case), he left an opening for as applied cases where a health might be a concern. The regulations here are health-related & Kennedy might be more open for that reason too to draw a line. Time will tell.

Posted by: Joe | Sep 17, 2015 8:18:08 PM

True, according to Justice Blackmun, a human person is a naturalized citizen. How can a Justice who does not know the definition of person to begin with, rule whether or not the son or daughter residing in their mother's womb is a person?

Posted by: Nancy D. | Sep 16, 2015 7:28:06 PM

Justice Kennedy providing a fifth vote for a limited stay in Texas is of mild relief here but Justice Blackmun's ill wind language still comes to mind.

Posted by: Joe | Sep 16, 2015 5:45:05 PM

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