The Supreme Court's decision on a recent abortion-related case could be a game-changer.
As the U.S. Supreme Court prepares to issue dozens of opinions in the homestretch of its current term, the Court’s still vacant seat and the heightened national attention around the country’s political future, spurred by the presidential race, endow the coming weeks with particular significance. The persistence of the eight-member Court created by Justice Antonin Scalia’s death three months ago and the Senate Republicans’ ongoing refusal to act on attempts to fill the seat have prompted widespread speculation as to the nature and the number of 4-4 decisions to be issued in the foreseeable future.
Whole Woman’s Health v. Hellerstedt is the most important abortion-related case to be heard by the Court since the early 1990s.
The Court’s unanimous mid-May decision to send the most recent Affordable Care Act contraception coverage case, Zubik v. Burwell, back to the lower courts without taking a substantive stance on it provides some insight into how a reduced high court functions, issuing rulings with limited immediate impact. It also presents a lens through which to predict the potential outcome of the Court’s other high-profile reproductive rights case, Whole Woman’s Health v. Hellerstedt.
The Court’s treatment thus far of Whole Woman’s Health v. Hellerstedt—a case concerning the constitutionality of Texas’s controversial 2013 abortion regulations—contests the means and ends of the incremental and indirect fight against abortion that has been waged in state legislatures and federal courts for decades. Texas’s laws targeting abortion providers are indicative of the broader trend in how battles over abortion are waged and won today. Whereas clinic-front activism and demonstrations once characterized the debate, today the most important disputes affecting present and future access to abortion are principally taking place out of public view, in state legislatures and courts.
The transition began in the 1990s, as antiabortion street protests fell into decline, and in their stead a sophisticated set of “cause lawyers” and related political actors stepped into the vacuum. Both sides developed legal and political resources, but in the early 2000s steps were taken in the antiabortion camp to consolidate many of the leading Christian lawyers into a superbly organized and potent institutional structure. As these activist lawyers took the stage, the strategy of antiabortion advocates largely shifted to increasingly restricting abortion access as opposed to directly ending it all at once. With few exceptions this process starts in state legislatures and it continues in courtrooms as clinics and their supporting legal organizations immediately challenge the constitutionality of these laws—such is the case in Whole Woman’s Health v. Hellerstedt.
The strategy of leading antiabortion advocates has been to play a long game, aiming for the day that a case will reach and survive challenge in what has predominantly been an increasingly conservative US Supreme Court, potentially changing the abortion policy landscape for the entire country. This form of abortion politics is coming to a head with the Supreme Court’s hearing of Whole Woman’s Health—making it the most important abortion-related case to be heard by the Court since the early 1990s. But the fly in the ointment for antiabortion advocates came in February just a month before oral arguments in the latest abortion policy case: the death of Justice Antonin Scalia.
The strategy of antiabortion advocates has been to play a long game, aiming for the day that a case will reach and survive challenge in what has predominantly been an increasingly conservative US Supreme Court.
Over the course of his career on the bench, Justice Scalia was a highly vocal opponent to abortion in oral arguments and in his written opinions. With his death, that role—like his seat—was left vacant. Justice Thomas, a close ally of Scalia’s in abortion-related cases, but one who acts like something of a ten-year judicial cicada in oral arguments, could not be expected to replace him. Roberts, who is seen as an abortion opponent, did join in questioning the clinics’ lawyers, but also, as the Chief Justice, he played the role of referee and was not particularly aggressive. Kennedy, seen as the “swing vote” up for contention between the Court’s conservative and liberal wings, was clearly not in the running for Scalia’s role in abortion cases either.
As the author of a 1985 Justice Department memo that encouraged the indirect and incremental approach to challenging abortion represented in the Texas law, it was Justice Alito who appeared the most well positioned to assume Scalia’s place. He peppered the lawyer representing the women’s health clinic with questions and twice attempted to intervene and assist the Texas Solicitor General. These efforts, though, were overshadowed and Alito stood alone as the unified liberal front, embodied in Justices Kagan, Breyer, Sotomayor, and Ginsburg, monopolized the proceedings, substantively countering Alito’s efforts and underscoring Scalia’s pronounced absence.
Looking toward the eventual ruling, Justice Kennedy’s appearance amidst the liberal-front’s efforts could be a significant indicator as to the case’s outcome. His question—which ventured the possibility that Texas was imposing an unconstitutional undue burden on women—raises the specter of his joining the liberal justices in what could be a 5-3 decision to strike down the law.
Such an outcome, however, is still speculative and there are signs that the Court may choose to issue another 4-4 ruling, or return the case to the lower courts as it just did in Zubik. For example, days after hearing Whole Woman’s Health the Court decided to temporarily block Louisiana’s new and closely related abortion regulations after the same Federal Appellate Court that affirmed Texas’s law announced that Louisiana’s abortion law should be allowed to go into effect. By granting a stay in the case the Supreme Court left open the possibility of rehearing the larger question presented in Whole Woman’s Health: Are the indirect means by which states have been aggressively regulating abortion clinics (often forcing them to close) constitutional?
As with Zubik, either of these possible outcomes pushes the substantive conclusion of these major reproductive rights cases into the future, both prolonging their public relevance and, as the next president will likely fill Scalia’s vacant seat, highlighting the “culture war” stakes of the coming election.
Zubik and Whole Woman’s Health’s arrivals at the US Supreme Court are the most recent examples of the Christian Right’s impressive legal and political resources. The success of conservative Christian public interest law firms and advocacy organizations springing from this investment have been aided over the past decade by arguing in front of a receptive Court. Both of these cases, however, draw into question the Christian Right’s immediate prospects of continuing to affect national policy through the Court. These cases could very well become part of a presidential election increasingly framed by gender issues and “the woman card,” and subsequently influence down ticket Senate elections that will be instrumental in determining future Supreme Court appointments. Taken together, these two factors alone illustrate the possibility of major problems for this movement for years to come.
Joshua C. Wilson is Associate Professor of Political Science at the University of Denver. He is the author of The New States of Abortion Politics as well as The Street Politics of Abortion: Speech, Violence, and America's Culture Wars.
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