Dispute Could Return Abortion to SCOTUS, Justice Kavanaugh


The right of a woman to choose abortion is being hampered by rising controls in conservative states and is expected to be further constrained by the appointment of Brett Kavanaugh to the U.S. Supreme Court, according to experts.

Limitations are currently so onerous in some states that they could ultimately create a divide in which abortions are available only in large cities and the East and West Coast states.

Targeted Restrictions on Abortion Providers, also known as TRAP laws, are reportedly wrapping some abortion clinics in red tape, such as paperwork or petty requirements that hallways be a certain width. Some states are delaying abortions with a two-day waiting period, licensing schemes or parental consent laws.

“Abortion providers are burdened until it’s no longer feasible for clinics to stay open,” said Andy Ayers, assistant professor and director of Albany Law School’s Government Law Center in New York.

So far, at least seven states have curtailed widespread access.

“By our count, Kentucky, Mississippi, North Dakota, South Dakota, West Virginia, Wyoming and now Missouri only have one abortion clinic in the state,” said Rebecca Wind, associate director of communications with the Guttmacher Institute.

In Virginia, the identity of an abortion practitioner was sealed by court order on August 20 as a protection against harassment while a complaint filed by a coalition of abortion advocates lead by the Center for Reproductive Rights is litigated in the Eastern District.

“It’s a climate, depending on the politics where you live, in which abortion providers may be worried about safety if their name or identity is disclosed,” said Professor Jessie Hill, who teaches constitutional law and reproductive rights at Case Western Reserve University.

“Physicians can get protesters at their home, people following them or their kids can be targeted.”

These obstacles have emerged despite the constitutional right to abortion afforded by U.S. Supreme Court cases, such as Roe v Wade in 1973, Planned Parenthood v Casey in 1992 and Whole Woman’s Health v. Hellerstedt in 2016.

The most recent, the June 27, 2016, U.S. Supreme Court decision, states that the challenged provisions of Texas law H.B. 2 close most of the abortion facilities in Texas and place added stress on those facilities able to remain open.

“They vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”

Although it should apply to all states, the 2016 SCOTUS ruling isn’t effectively resolving the differing opinions that have emerged in various federal circuit courts in recent years and may land abortion rights back in the lap of the U.S. Supreme Court.

“Even though impeding access to abortions was settled as unconstitutional, federal circuit courts in Louisiana, Arkansas and Missouri found ways to distinguish their cases based on facts on the ground in those states,” Ms. Hill told PacerMonitor. “It’s an interesting development that’s playing into the outcome of the Virginia lawsuit because of these other decisions that were issued after the Texas victory.”

For example,

  • In Louisiana, the 5th circuit decided in June Medical Services v Gee that the state’s admitting privileges law are not as burdensome as was deemed in the state of Texas.

  • In Arkansas, the 8th Circuit vacated and remanded a lower court decision in Planned Parenthood Arkansas v Larry Jegley, which granted Planned Parenthood a preliminary injunction preventing the state of Arkansas from enforcing a contract-physician requirement.

  • In Missouri, the 8th Circuit reversed a lower court’s decision that banned the state from requiring abortion clinics to be ambulatory surgery centers and requiring physicians who provide abortions to have admitting privileges at local hospitals.

According to experts, the 5th, 8th and 6th federal appellate districts are notorious for being ultra conservative while coastal courts, such as the 9th, 1st and 2nd circuits, are among the most liberal.

“We have decades of case law establishing that states cannot place an undue burden on abortion access but we really don’t know what that means right now because the U.S. Supreme Court is in flux,” Mr. Ayers said.

The Center for Reproductive Rights has based their Virginia lawsuit on the U.S. Supreme Court’s 2016 Whole Woman’s Health v. Hellerstedt ruling to oppose restrictive laws, such as requiring women seeking an abortion to undergo an ultrasound and statutes that treat abortion as a crime.

“The laws we are challenging are shutting down clinics, delaying care, increasing costs and piling one burden on top of another in an attempt to regulate the fundamental protections of Roe v. Wade out of existence,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which filed the federal suit.

But the recent appointment of Brett Kavanaugh to the U.S. Supreme Court panel of justices could pose a greater challenge since

Justice Kavanaugh is known for disagreeing with an opinion issued by the Court of Appeals for the District of Columbia Circuit that allowed a 17-year-old pregnant, foreign citizen in government custody to have an abortion.

“The en banc majority reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors,” wrote Justice Kavanaugh in his October 24, 2017 dissenting opinion. “The majority’s decision is inconsistent with the precedents and principles of the Supreme Court.”

Pundits expect to see more states passing laws that prohibit or limit abortion due to Mr. Kavanaugh’s past position on abortion.

“Conservatives are going to want to test Kavanaugh’s willingness to uphold restrictions,” Mr. Ayers told PacerMonitor.

As a result, it may not be in the best interest of abortion providers to appeal the cases they may lose in the circuit courts to the Supreme Court.

“Abortion advocates will likely consider legislative solutions in the political realm, which is a tough way to go right now, or they may have to litigate in state supreme courts but supreme courts in red states may not be friendly either,” said Ms. Hill.

Based on overwhelming circuit court precedence, the Center for Reproductive Rights may very well win its federal lawsuit in Virginia, which answers to the 4th circuit court of federal appeals, but the impact of a favorable ruling isn’t likely to extend nationally because of the ever-widening regional divide.

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