Abortion and the Supreme Court: The justices can’t continue to ignore the issue.

The Supreme Court Has Been Avoiding Abortion Cases for Years. That Has to Stop.

The Supreme Court Has Been Avoiding Abortion Cases for Years. That Has to Stop.

The law, lawyers, and the court.
June 17 2015 5:55 PM

When Will the Supreme Court Stop Avoiding Abortion?

Severe laws in Texas and Mississippi require the justices to act.

Anti-abotion supreme court.
Anti-abortion activists take part in the annual March for Life rally on Jan. 22, 2015, in Washington.

Photo by Mandel Ngan/AFP/Getty Images

On Monday, the U.S. Supreme Court declined to revive a major abortion provision from North Carolina that would have required any woman seeking an abortion to submit to a mandatory ultrasound while doctors or technicians showed the images of the scan while describing the fetus in detail, whether or not the patient wished to hear or see it or the doctor wished to show or say it. The law passed in 2011 over the veto of then–Gov. Bev Perdue. The law contained no exception for rape, incest, serious health risks to the patient, or cases of severe fetal anomalies.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

In refusing to hear the appeal, the court left in place the ruling from the U.S. 4th Circuit Court of Appeals, which had struck down the provision, finding that it violated the First Amendment rights of physicians who were being “compelled” to speak. That means that, at least in the states covered by the 4th Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), these types of forced “display and describe” provisions are unconstitutional. They remain permissible in other jurisdictions that have upheld these types of requirements. Both the U.S. Courts of Appeals for the 5th and 8th Circuits have upheld similar laws, relying on language from Planned Parenthood v. Casey, requiring a physician to advise her pre-abortion patient of the gestational age of her fetus and provide printed information about the risks of abortion and other services. Courts that upheld the “display and describe” laws determined that there was little substantial difference between the information provided by physicians in Casey and the “display and describe” requirements in the new laws. The 4th Circuit disagreed, finding that the requirement had the effect of “transforming the physician into the mouthpiece of the state,” which “undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes.”

As Jessica Mason Pieklo noted, this represents the second time that the Supreme Court has refused to hear a mandatory ultrasound case. This suggests that while the court may not yet be ready to wade into the thicket of determining what an “undue burden” truly means, the justices continue to believe that any speech restriction (or compulsion) is a bad thing, full stop.

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With the North Carolina provision fully ducked, court-watchers now turn their attention to several other abortion regulations that are poised to be taken up at the high court, perhaps as early as this coming fall. Two challenges still loom large: The court is currently trying to decide whether to take up a case about a Mississippi admitting privileges law, struck down by the 5th Circuit, that could have the effect of closing down the only abortion clinic left in the state. As ThinkProgress notes, “When the bill was introduced and passed, politicians in Mississippi openly admitted that the law was specifically designed to close the last clinic in the state.” A question the justices must attempt to answer is whether a state can completely eliminate women’s ability to exercise a constitutional right because they can exercise it in other states. In the Mississippi appeals court, the judges cited the constitutional principle that a state can’t violate a citizen’s rights by claiming she can go out of state to exercise it elsewhere.

The court is also looking down the barrel of a challenge to two parts of HB2, the famous 2013 Texas anti-abortion law that required providers to obtain admitting privileges to local hospitals and that forced clinics to be retrofitted to meet surgical center standards. Those provisions were upheld by the 5th Circuit last week. Under the ruling, all but seven Texas abortion providers may be forced to shutter—in a state that is home to 27 million people. The federal appeals court made just one exception, for McAllen, Texas, where only one clinic serves a significant portion of South Texas. The court determined that should the clinic in McAllen be forced to close, women would have to drive 235 miles to obtain an abortion, which would prove a substantial obstacle to getting an abortion.

The 5th Circuit ruling goes into effect on July 1, unless that court agrees to take another look or the Supreme Court intervenes, which it did last fall, with an earlier decision about the clinic requirements of that same omnibus legislation. Back then, the court put a temporary hold on the law while the litigation played out. Justices Breyer, Ginsburg, Kagan, and Sotomayor suggested they were ready to hear the Texas appeal.

At this point the “undue burden” test from Casey has become something akin to a judicial Rorschach test, and even pro-choice supporters wary of another trip to the high court have become persuaded that absent a definitive ruling from the justices, the standard will continue to mean whatever the reviewing court wants it to mean. The court has been dodging reproductive rights cases for years now, but as the appeals courts continue their judicial multicar pileup, and especially if they continue to arrive at contradictory results, it begins to look more and more likely that the court will simply have to weigh in. As Professor Michael Dorf told the New York Times last week, the high court heard about 20 abortion cases from 1973 to 1992. They heard only three abortion cases in the 23 years since. Dorf suggests that the issue has simply been too charged and divisive to persuade the justices to jump in. It may now be inevitable.

For opponents of reproductive rights, the hope is that Justice Anthony Kennedy is finally ready to do what he couldn’t bring himself to do in Casey—yank the breathing tube out of Roe v. Wade once and for all. For supporters of reproductive rights, the decision of the court to avoid hearing the North Carolina ultrasound case offers a filament of comfort: Maybe the court wants to wait just a little bit longer. As Robin Marty argues here, perhaps the court’s refusal to hear the North Carolina ultrasound case means the justices are content to sit back a little longer and let this whole mess play out in the state and lower federal courts. Still the reign of confusion and the patchwork of judicial decisions create uncertainty. And the fact that Texas is poised to close almost all of its remaining clinics in the coming weeks creates a new sense of urgency.

There’s one more consideration. As Pema Levy argued last week at Mother Jones, polls show that public support for basic access to reproductive rights seems to have increased somewhat of late: “Last month, Gallup reported an upswing in pro-choice sentiment in the last year. On the 40th anniversary of Roe v. Wade in 2013, a Wall Street Journal/NBC News poll found that a record 70 percent of Americans believed that landmark ruling should stand.” That means that if the court agrees to take an abortion case right at the heart of primary season, it could be setting up the issue as a big fat loser for the GOP. Far be it from me to suggest that the justices take that kind of political calculus into account when planning their election-year dockets, but do the court’s conservatives really want to use this fall to force GOP candidates to own the worst anti-choice stereotypes? The Texas case, in which the appeals court judges assumed that women have the time and money to drive their convertibles hundreds of miles across the state to obtain basic reproductive care, promises to be the unholy stepchild of Mitt Romney’s greatest hits: a place where “binders full of women” meets the blithe unconcern of the 1 percent.