Will SCOTUS Use Louisiana’s Abortion Law to Overturn Roe v. Wade?
Feb 14, 2020 by David Fowler
In August, members of the Judiciary Committee of the Tennessee Senate heard two pro-life legal experts say that it was not wise to enact any legislation that challenges the legitimacy of Planned Parenthood v. Casey (1992) and its progenitor, Roe v. Wade (1973). They said abortion laws that didn’t challenge Roe and Casey could still be used by the Court to overrule them. I just learned why that advice should be taken with a grain of salt and why it is highly unlikely SCOTUS will reverse Roe/Casey this summer.
Any proposed abortion law must be evaluated in light of what Justice Sandra Day O’Connor, writing for the majority, said in Casey, “[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.” Chief Justice John Roberts is fixated on the Court’s legitimacy.
Justice O’Connor could just as well have written that statement today. There is a fervor today for “heartbeat” bills that everyone hopes will lead to the U.S. Supreme Court reversing Roe/Casey. The pitch of that fervor rose following what Virginia’s governor said and New York’s legislature did last year—the Court is “under fire” to reverse Roe/Casey.
Given that, we would all be wise to consider what Jim Bopp, one of the legal experts to whom I alluded, testified to in August, which echoes what Justice O’Connor said: “There needs to be a plausible justification why a new law is constitutional under current law.” For reasons that will become clear, the word “current” is critical to understanding what the pro-life community is doing wrong.
And, for that reason, Mr. Bopp rightly testified that “[t]he Court is loathe to switch sides just because a new justice joins the Court.” I agree. That is not a compelling or principled reason for departing from “current law.”
He also said, “the Court is much more likely to grant certiorari regarding a ‘non-prohibitory’ law that is challenged as conflicting with Roe, if there is a plausible argument that the law is constitutional under current law.” I agree with that, too, but, again, I call your attention to the phrase “current law.”
But then he immediately added, “And it will serve as a suitable vehicle to reexamine Roe, if the Court is willing.” This is the statement with which I would quibble. The word “if” is a huge IF, and its significance is proved by the case just argued before the U.S. Supreme Court over the Louisiana law requiring abortion doctors to have admitting privileges.
The First 5th Circuit Abortion Law Case Before SCOTUS. In 2015, in a case known as Whole Women’s Health v. Hellerstedt, the U.S. Court of Appeals for the 5th Circuit upheld the constitutionality of a Texas law requiring abortion doctors to have hospital admitting privileges. The appellate court said the law did not violate the current “law” or constitutional principle in Casey because it did “not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to [or designed to further] a legitimate state interest.”
That decision was appealed to the U.S. Supreme Court.
According to Mr. Bopp’s testimony, Whole Women’s Health should have been a suitable vehicle to reexamine Roe, if the Court was willing.
It was not. And why not? Because everyone argued that Roe/Casey was the appropriate legal standard by which abortion laws should be measured! The states accepted “current law” as the law. Who is going to reverse current law when all the parties on both sides accept it!
So, in 2016 the U.S. Supreme Court reversed the 5th Circuit’s ruling and said that the Texas law placed “a substantial obstacle in the path of women seeking a previability abortion” and “constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion)” and “violates the Federal Constitution. Amdt. 14, §1.” Notice the Court assumed Casey was, in Mr. Bopp’s words, the “current law.”
The Supreme Court not only did not revisit Casey, it relied on it!
The Second and Current 5th Circuit Case. Then, last year, the U.S. Court of Appeals for the 5th Circuit got another crack at a law requiring abortion doctors to have hospital admitting privileges, this time through a similar law in Louisiana. The federal district court had blindly followed and applied to the Louisiana law what the U.S. Supreme Court had opined in Whole Women’s Health in regard to the Texas law.
But the 5th Circuit said that the federal district court had not looked at the facts surrounding the application of the Louisiana law compared to the facts surrounding the Texas law and that the facts were different enough in Louisiana to disregard the U.S. Supreme Court’s decision in Whole Women’s Health. It again upheld the doctor admitting privileges law.
Here is where the “if” comes in relative to Mr. Bopp’s testimony that nibble-around-the-edges-of-Casey abortion laws are “a suitable vehicle to reexamine Roe.”:
The Court is simply not presently willing to overturn Casey if it can uphold the “current law” of Roe/Casey without having to address those decisions. Overlook this and you miss everything.
The U.S. Supreme Court needs a principled and constitutional way out of its terrible 14th Amendment jurisprudence, and nibble-around-the-edges-and-don’t-really-challenge-Roe/Casey abortion laws do not, in Justice O’Connor’s words, assert any new “compelling reason” to overturn those decisions. Here’s why.
I asked a couple of trusted law professors on Monday if this would be a correct statement:
Did you notice that the question didn’t say anything about Roe/Casey? The Court isn’t asking the lawyers to address whether Roe/Casey, the current law, is still good law!
Here is what Gerard Bradley, who has taught constitutional law at Notre Dame for 27 years, said:
Professor Adam MacLeod, a former student of Bradley’s, texted his answer and went even further than his teacher: “In fact, the way the issue is phrased, the Court could affirm without even reversing Hellerstedt.”
Indeed, the U.S. Supreme Court may say the Texas law was an undue burden on abortion and the Louisiana law is not an undue burden based on the factual distinctions that the 5th Circuit drew.
Here’s the point: Any bill—not just a “heartbeat” bill—that takes for granted that Roe/Casey is “good law” but is passed on the belief that the Court might use it as a pretext to reverse Roe/Casey offers little, if any, real possibility that those decisions will actually be reversed.
If legislators and the pro-life community want to put the Supreme Court in a position in which it cannot skirt the question of whether Roe/Case is “good law,” then they must pass a law that leaves only that question before the Court.
Will the Court want to hear that kind of case? I don’t know. These professors are not saying that the Court is ready to hear that kind of case.
Will the Court answer the narrow, singularly focused question raised by that case by reversing Roe/Casey? I don’t know.
Lots of other nibble-around-the-edges-and-don’t-really-challenge-Roe/Casey abortion laws are already headed to the U.S. Supreme Court and will be decided before any Tennessee abortion law would arrive there.
In other words, Tennessee would be tagging along behind for the most part, so why not give the federal judicial system something new to consider, something grounded in a different constitutional argument based on a different provision in the U.S. Constitution, a law that does not assume Roe/Casey is “good law”?
If Tennessee and other states don’t stop assuming Roe/Casey is good law, I think the best the pro-life crowd can hope for is that day when the Court simply tires of hearing cases involving Roe and Casey and no longer cares if it has a “compelling reason” to overturn them.
I hope we don’t have to wait another 47 years for that day to come.
What SCOTUS Needs to Overturn Roe/Casey
Any proposed abortion law must be evaluated in light of what Justice Sandra Day O’Connor, writing for the majority, said in Casey, “[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.” Chief Justice John Roberts is fixated on the Court’s legitimacy.
Justice O’Connor could just as well have written that statement today. There is a fervor today for “heartbeat” bills that everyone hopes will lead to the U.S. Supreme Court reversing Roe/Casey. The pitch of that fervor rose following what Virginia’s governor said and New York’s legislature did last year—the Court is “under fire” to reverse Roe/Casey.
What Jim Bopp Got Right and the Big “If” He Left Behind
Given that, we would all be wise to consider what Jim Bopp, one of the legal experts to whom I alluded, testified to in August, which echoes what Justice O’Connor said: “There needs to be a plausible justification why a new law is constitutional under current law.” For reasons that will become clear, the word “current” is critical to understanding what the pro-life community is doing wrong.
And, for that reason, Mr. Bopp rightly testified that “[t]he Court is loathe to switch sides just because a new justice joins the Court.” I agree. That is not a compelling or principled reason for departing from “current law.”
He also said, “the Court is much more likely to grant certiorari regarding a ‘non-prohibitory’ law that is challenged as conflicting with Roe, if there is a plausible argument that the law is constitutional under current law.” I agree with that, too, but, again, I call your attention to the phrase “current law.”
But then he immediately added, “And it will serve as a suitable vehicle to reexamine Roe, if the Court is willing.” This is the statement with which I would quibble. The word “if” is a huge IF, and its significance is proved by the case just argued before the U.S. Supreme Court over the Louisiana law requiring abortion doctors to have admitting privileges.
What the Current SCOTUS Abortion Case Teaches Us About ‘If’
The First 5th Circuit Abortion Law Case Before SCOTUS. In 2015, in a case known as Whole Women’s Health v. Hellerstedt, the U.S. Court of Appeals for the 5th Circuit upheld the constitutionality of a Texas law requiring abortion doctors to have hospital admitting privileges. The appellate court said the law did not violate the current “law” or constitutional principle in Casey because it did “not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to [or designed to further] a legitimate state interest.”
That decision was appealed to the U.S. Supreme Court.
According to Mr. Bopp’s testimony, Whole Women’s Health should have been a suitable vehicle to reexamine Roe, if the Court was willing.
It was not. And why not? Because everyone argued that Roe/Casey was the appropriate legal standard by which abortion laws should be measured! The states accepted “current law” as the law. Who is going to reverse current law when all the parties on both sides accept it!
So, in 2016 the U.S. Supreme Court reversed the 5th Circuit’s ruling and said that the Texas law placed “a substantial obstacle in the path of women seeking a previability abortion” and “constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion)” and “violates the Federal Constitution. Amdt. 14, §1.” Notice the Court assumed Casey was, in Mr. Bopp’s words, the “current law.”
The Supreme Court not only did not revisit Casey, it relied on it!
The Second and Current 5th Circuit Case. Then, last year, the U.S. Court of Appeals for the 5th Circuit got another crack at a law requiring abortion doctors to have hospital admitting privileges, this time through a similar law in Louisiana. The federal district court had blindly followed and applied to the Louisiana law what the U.S. Supreme Court had opined in Whole Women’s Health in regard to the Texas law.
But the 5th Circuit said that the federal district court had not looked at the facts surrounding the application of the Louisiana law compared to the facts surrounding the Texas law and that the facts were different enough in Louisiana to disregard the U.S. Supreme Court’s decision in Whole Women’s Health. It again upheld the doctor admitting privileges law.
Now Comes the Big “If”
Here is where the “if” comes in relative to Mr. Bopp’s testimony that nibble-around-the-edges-of-Casey abortion laws are “a suitable vehicle to reexamine Roe.”:
The Court is simply not presently willing to overturn Casey if it can uphold the “current law” of Roe/Casey without having to address those decisions. Overlook this and you miss everything.
The U.S. Supreme Court needs a principled and constitutional way out of its terrible 14th Amendment jurisprudence, and nibble-around-the-edges-and-don’t-really-challenge-Roe/Casey abortion laws do not, in Justice O’Connor’s words, assert any new “compelling reason” to overturn those decisions. Here’s why.
What Knowledgeable Law Professors Said About SCOTUS Reversing Roe This Summer
I asked a couple of trusted law professors on Monday if this would be a correct statement:
When SCOTUS decides to hear a case, it states what question it wants answered, not the parties. Thus, the question the Supreme Court wants answered becomes critical. For example, in the case involving the Louisiana law on which SCOTUS just heard arguments—June Medical Services, LLC. v. Gee—this was the question:
QUESTION PRESENTED:
In Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), this Court held that a state law requiring physicians who perform abortions to have admitting privileges at a local hospital was unconstitutional because it imposed an undue burden on women seeking abortions. The U.S. Court of Appeals for the 5th Circuit upheld an admitting privileges law in Louisiana that is identical to the one this Court struck down. This presents the following issue:
Whether the 5th Circuit's decision upholding Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with this Court's binding precedent in Whole Woman's Health.
In Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), this Court held that a state law requiring physicians who perform abortions to have admitting privileges at a local hospital was unconstitutional because it imposed an undue burden on women seeking abortions. The U.S. Court of Appeals for the 5th Circuit upheld an admitting privileges law in Louisiana that is identical to the one this Court struck down. This presents the following issue:
Whether the 5th Circuit's decision upholding Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with this Court's binding precedent in Whole Woman's Health.
As you can see, the question relates to Whole Woman’s Health, not Roe or Casey, per se, though, I concede, the Court could go beyond the question under SCOTUS R. 24 to address “plain error,” but the point is the Court could answer this question and reverse Whole Woman’s Health without having to address Roe or Casey directly.
Did you notice that the question didn’t say anything about Roe/Casey? The Court isn’t asking the lawyers to address whether Roe/Casey, the current law, is still good law!
Here is what Gerard Bradley, who has taught constitutional law at Notre Dame for 27 years, said:
Yes, the Court could and probably will affirm the Fifth Circuit, thus more or less overruling the specific holding in WWH, and say nothing further of importance about Roe or Casey. The Court would be taking for granted the Casey “undue burden” test remains the law, and will likely say that WWH was a mistaken application of that standard, and should no longer be followed.
Professor Adam MacLeod, a former student of Bradley’s, texted his answer and went even further than his teacher: “In fact, the way the issue is phrased, the Court could affirm without even reversing Hellerstedt.”
Indeed, the U.S. Supreme Court may say the Texas law was an undue burden on abortion and the Louisiana law is not an undue burden based on the factual distinctions that the 5th Circuit drew.
Here’s the point: Any bill—not just a “heartbeat” bill—that takes for granted that Roe/Casey is “good law” but is passed on the belief that the Court might use it as a pretext to reverse Roe/Casey offers little, if any, real possibility that those decisions will actually be reversed.
If legislators and the pro-life community want to put the Supreme Court in a position in which it cannot skirt the question of whether Roe/Case is “good law,” then they must pass a law that leaves only that question before the Court.
Will the Court want to hear that kind of case? I don’t know. These professors are not saying that the Court is ready to hear that kind of case.
Will the Court answer the narrow, singularly focused question raised by that case by reversing Roe/Casey? I don’t know.
The Clincher for Me
Lots of other nibble-around-the-edges-and-don’t-really-challenge-Roe/Casey abortion laws are already headed to the U.S. Supreme Court and will be decided before any Tennessee abortion law would arrive there.
In other words, Tennessee would be tagging along behind for the most part, so why not give the federal judicial system something new to consider, something grounded in a different constitutional argument based on a different provision in the U.S. Constitution, a law that does not assume Roe/Casey is “good law”?
If Tennessee and other states don’t stop assuming Roe/Casey is good law, I think the best the pro-life crowd can hope for is that day when the Court simply tires of hearing cases involving Roe and Casey and no longer cares if it has a “compelling reason” to overturn them.
I hope we don’t have to wait another 47 years for that day to come.
