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. (A sole Planned Parenthood clinic provides only medication abortions in early pregnancy.) The doctor, Frederick Hopkins, testified that to avoid risking his patients’ welfare by using the alternative methods the state identified, he would have to stop offering abortions after the earliest weeks of the second trimester.
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. Citing evidence that “women fear hostility or harassment from their other health care providers for deciding to seek an abortion” (this is Arkansas, after all), Judge Baker said that “the burdens imposed by the medical records mandate appear to serve no proper state purpose.”
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). Judge Baker concluded that for such girls, police involvement was a stigmatizing invasion of privacy without a countervailing benefit.
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. The Casey decision explicitly invalidated as an undue burden a requirement for a married woman to notify her husband before obtaining an abortion. “What defendants may not do directly they also may not do indirectly,” Judge Baker observed.
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. It’s up to the Supreme Court, not the Eighth Circuit, to tell the country what the law of abortion is. Chief Justice Roberts’s separation opinion in June Medical is fundamentally ambiguous. After all, he professes adherence to Casey’s undue-burden test, and Whole Woman’s Health, properly understood, is an explication of the undue-burden standard, not a departure from it. Analyzing the decision in the Yale Law Journal shortly after it was issued in 2016, Reva B. Siegel and I observed: “Of course Casey requires judges to balance the benefits of regulating abortion against the burdens on access that a law imposes; how else would a judge determine a burden is ‘undue’?”
A judge who understands how a lower court should approach the Supreme Court at this moment of instability is Federal District Judge Theodore Chuang, who sits in Greenbelt, Md. Last month, ruling in a case brought by the American College of Obstetricians and Gynecologists and other plaintiffs, he ordered the U.S. Food and Drug Administration to permit doctors, on a temporary basis during the pandemic, to mail or deliver to patients the pills that produce abortions in early pregnancy.
While the F.D.A. has temporarily lifted the in-person dispensing requirement for certain carefully controlled medications for depression and multiple sclerosis, it has refused to do the same for mifepristone and misoprostol, the two drugs used for medication abortion. Under the current regime, women must receive the pills directly from a medical provider in a medical office, although they typically take the two pills at home.
Since the start of the pandemic, medical groups and patients have argued that with many medical offices operating under strict limitations, a trip to the office to receive the pills is not only inconvenient and possibly dangerous, but medically unnecessary given doctors’ ability to consult with and evaluate their patients by telemedicine. Under the circumstances, Judge Chuang wrote, “the in-person requirements impose a substantial obstacle to abortion patients seeking medication abortion care.”
Judge Chuang wrote his opinion in the weeks following the Supreme Court’s ruling in the June Medical case. Taking account of the chief justice’s separate opinion, he said that “June Medical Services is appropriately considered to have been decided without the need to apply or reaffirm the balancing test of Whole Woman’s Health, not that Whole Woman’s Health and its balancing test have been overruled.” He continued, “Where Whole Woman’s Health remains the most recent majority opinion delineating the full parameters of the undue burden test, the court finds that its balancing test remains binding on this court.”
Unsurprisingly, the Trump administration has gone to the United States Court of Appeals for the Fourth Circuit for a stay of Judge Chuang’s opinion while it prepares a formal appeal. “A one-time clinic visit, even if an obstacle, is not a substantial one,” the government lawyers argue, observing that in any event, it was the pandemic and not the F.D.A. that is responsible for any obstacles women might face in obtaining a medication abortion during the first 10 weeks of pregnancy, the window during which that method is available. (We might deem this the “it is what it is” method of legal analysis.) “There is no constitutional right to an abortion method of one’s choice,” the brief continues.
While the administration’s brief refers in passing to the chief justice’s separate opinion in Whole Woman’s Health, Indiana and 10 other states argue vigorously in a brief on the administration’s behalf that the undue-burden test is now narrower than Judge Chuang understood it to be. “A balancing test that would invalidate laws without a substantial obstacle lies outside common ground shared with the chief justice, and therefore does not control,” the states argue.
We may not have to wait long to see what remains of abortion law. If the Fourth Circuit denies the stay, it’s predictable that the administration will bring the issue directly to the Supreme Court, as it’s doing these days at a rate that would have appeared astonishing just a few years ago. And why not? The door, after all, is open.
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.