We Just Saw the Future of Anti-Abortion Laws.by Linda Greenhouse
'An appellate court has reinstated a bizarre grab bag of statutes that were invalidated more than three years ago.
Well, that didn’t take long.
When I wrapped up the Supreme Court term in a column last month, I observed that in his separate opinion providing a crucial fifth vote to overturn a Louisiana abortion law, Chief Justice John Roberts had been “careful to leave the door open to continued attacks on the right to abortion.”
What I intended as a cleareyed warning to my fellow abortion-rights supporters to hold the cheers for the outcome in June Medical Services v. Russo turns out to have been quite an understatement. It turns out that the door, with the chief justice holding it, opened wide enough to drive an entire federal appeals court through.
Last week, the famously anti-abortion United States Court of Appeals for the Eighth Circuit invoked the chief justice’s separate opinion to justify reinstating four Arkansas anti-abortion laws that a federal district judge had invalidated more than three years ago.
The judge, Kristine Baker, had evaluated the four laws in light of two relevant Supreme Court precedents. One was Planned Parenthood v. Casey, the 1992 decision that established the “undue burden” standard that the court has applied to abortion regulations ever since. The court in Casey defined as an undue burden a regulation with “the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”
The other, much more recent, precedent was Whole Woman’s Health v. Hellerstedt, a 2016 decision that struck down a Texas law requiring doctors who perform abortions to have admitting privileges at local hospitals. While the law was clearly intended to force abortion providers out of business, Texas claimed to be protecting women’s health. In his majority opinion, Justice Stephen Breyer weighed the claimed health benefit, which he found insubstantial, against the law’s burden on access to abortion, which was demonstrable: While it was briefly in effect, the requirement had already forced half the state’s abortion clinics to close. The comparison of benefit and burden showed, Justice Breyer concluded, that the burden met Casey’s definition of “undue.”
Justice Breyer also wrote the controlling opinion in the June Medical case this summer, striking down an identical admitting-privileges requirement in Louisiana. Impelled by the identical nature of the two laws, Chief Justice Roberts gave Justice Breyer his vote. But he refused to support Justice Breyer’s analysis. Having dissented in Whole Woman’s Health, the chief justice said he still believed that case to have been wrongly decided, its weighing of benefit and burden an inappropriately value-laden exercise for judges to undertake. All that counted, he wrote in his separate opinion in the new case, was the extent of the burden.
In the Arkansas case in which the Eighth Circuit intervened last week, the district judge had found that all four of the state’s laws presented an undue burden. One law makes it a crime for a doctor to use the most common and safest method for terminating a pregnancy in the second trimester. This measure was challenged by the only doctor in Arkansas to perform surgical abortions. . .
Weighing the law’s supposed benefit and evident burden as instructed by Whole Woman’s Health, Judge Baker, who was named to the Federal District Court in Little Rock by President Barack Obama, observed that “the court does not have an explanation from the legislature of the purpose of the law.” So on the benefit side, there was an absence of definition, while on the burden side, the impact was clear: The law would result in “rendering abortions essentially unavailable in the state of Arkansas starting at 14 weeks.” Thus, the burden was undue.
The second law requires doctors to obtain the complete medical history of a patient’s pregnancy before performing an abortion. Getting medical records from other providers can take days, but delay is only part of the problem. The request, submitted by an abortion provider, would likely alert a woman’s doctor of her decision to end the pregnancy. . .
The third law requires doctors to inform the local police any time a patient under age 17 has an abortion. The law makes no distinction between teenagers whose circumstances indicate potential sexual abuse and those who become pregnant through consensual sex with someone the same age — even a husband (girls in Arkansas can marry at 16 with parental consent). . .
The fourth law, titled the “tissue disposal mandate,” requires that both “parents” — the law’s term — of an aborted embryo or fetus be notified of and consent to the method of disposing of the tissue. This means that a woman’s sexual partner, whether a husband or even a rapist, must be informed that an abortion has taken place. . .
If this grab bag of anti-abortion measures seems bizarre, it’s just a taste of things to come. Clearly what the four have in common is to make getting an abortion more onerous. But they share something else as well, threatening to shred not only a woman’s privacy but her dignity, something the Casey decision explicitly protects.
All four laws, in fact, are plausibly at odds with Casey; the fourth undoubtedly is. There’s a sense in which the Whole Woman’s Health balancing test that Judge Baker applied — unsurprisingly, given that it was the Supreme Court’s most recent abortion decision when she wrote her opinion in 2017 — was icing on the cake. But it was enough to provide the opening needed by the three Republican appointees who made up the Eighth Circuit panel. Vacating Judge Baker’s decision, they told her to reconsider the case not in light of Whole Woman’s Health itself, but in light of the chief justice’s critique of Whole Woman’s Health. The appellate judges reasoned that without the full support of five justices, Whole Woman’s Health is simply no longer good law.
That is a highly aggressive move for lower court judges to make. . .
I’ll end this column by recounting my experience this week with the country’s rapidly imploding election system. My home state, Connecticut, this year is offering absentee ballots on request, no excuse needed, and in fact mailed ballot applications to all registered voters weeks before Tuesday’s primary. I mailed my application, but the ballot never came. So Tuesday morning, my husband, who mysteriously had received his ballot, and I drove two hours from western Massachusetts so that I could vote in person in New Haven. “I never received my absentee ballot,” I said to one of the poll workers. “Oh yes, I hear there’s been a problem,” she said. If this primary election was in the nature of a dry run, it was a dry run to disaster in November.'
https://www.nytimes.com/2020/08/13/opinion/arkansas-abortion-laws.html?
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