Monday marked the 45th anniversary of Roe v. Wade, the landmark decision that decriminalized abortion and lifted the threat of doctors being criminally prosecuted for providing the health-care service.
As my partner-in-justice Jessica Mason Pieklo and I have repeatedly said on our podcast, Boom! Lawyered (which you should totally be listening to, by the way), part of our mission at Team Legal is to help you understand how the courts and law operate. That’s vitally important since so many of your civil rights are being won or lost in a courtroom.
Lorie Chaiten, director of the Reproductive Rights Project of the Chicago-based Roger Baldwin Foundation of the American Civil Liberties Union (ACLU), understands this well. She has been litigating abortion rights in Illinois for more than 30 years—and helping build the foundation for well-known cases such as Whole Woman’s Health v. Hellerstedt, the case which struck down Texas’ Targeted Regulation of Abortion Providers (TRAP) laws in 2016. In that case, Justice Stephen Breyer, SCOTUS’s resident data nerd, examined the state of Texas’ evidence and found that it didn’t square with the state’s claims that its TRAP laws were intended to protect women’s health and safety.
But before Whole Woman’s Health, there was Ragsdale v. Turnock. Heard of it? I confess that I had not.
Ragsdale v. Turnock is an Illinois federal case that involved TRAP laws that were very similar to those at issue in Whole Woman’s Health. And it was Chaiten’s first case. In 1985.
That it’s 30 years later and abortion rights lawyers are fighting the same battles should give us pause: States are still trying to figure out how far they can go with TRAP laws.
I had a chat with Chaiten about what the Trump era has in store for abortion rights and whether the administration’s anti-science tilt threatens abortion rights.
Rewire: Did you see yourself doing this when you graduated from law school?
Chaiten: Oh, I could only wish that I would get to do this work. But, I certainly didn’t expect when I graduated from law school 33 years ago, that, in 2017, I would [still] be doing this, I can assure you of that. That we’d be facing the kind of threats that we’re facing today. I actually did my first abortion trial in 1985, Ragsdale vs. Turnock. It was a challenge to Illinois’ TRAP laws. Those statutes looked very similar to what was before the U.S. Supreme Court in the Whole Woman’s Health case. Obviously, there were some differences in the statutes, but it was about admitting privileges, and it also had medically unnecessary and costly clinic regulations. I took my first deposition and cross-examined my first witness in that case, and that case actually, we litigated up to the U.S. Supreme Court.
We litigated, and we won that case. It was a three-statute set of restrictions that we were challenging. One was the Ambulatory Surgical Treatment Center (ASTC) Act. The second was the Health Facilities Planning Act, which … imposed certain burdens on all ASTCs, and all abortion facilities regardless of what kind of abortion, regardless of how many you did; any place where an abortion was performed had to be an ASTC. Then the third was the Medical Practice Act, where it was considered to be unprofessional conduct to perform an abortion outside of a licensed ASTC.
We won in the district court, and the abortion-specific pieces of those statutes were all struck.
We prevailed again in the court of appeals, and then we were essentially on the Supreme Court steps when we entered into a consent decree with the state of Illinois that we live under today.
Rewire: In terms of the threats that the current administration poses to abortion rights, what do you think is actually going to happen? When Trump got elected, I had this dystopian view of what actually was going to happen—and that it was going to happen quickly. But it’s been more of a slow march toward Gilead, so to speak.
LC: I think you’re right about the slow march, but it’s scary beyond belief because our former opponents are now running the federal government and populating federal agencies like HHS. It is an anti-abortion, very assertive group of people.
I hope it goes slowly enough that we’ll have the opportunity to pull ourselves out of it politically.
In addition, you know as well as I do, they are filling the courts with people with their world view. It is beyond comprehension … that these would be the people that would be sitting on the courts of appeals or in the district courts around this country. We also know the vast majority of cases never go to the Supreme Court. They will be decided in those lower courts. We are going to be facing some ugly battles for a long time.
So, one big threat that I am very worried about is what happens to the courts. I’m obviously also quite concerned about the very aggressive use of “religious liberty.” To privilege religious beliefs over critical health care for not just women, right? For women. For LGBTQ people. For people making end-of-life decisions .… They’re doing some real damage.
All we can do is keep fighting on a daily basis to slow them down.
Rewire: I recently reread Gonzales v. Carhart—the case upholding the federal Partial Birth Abortion Ban Act. It upheld the ban despite the fact that the act contained no health exception and three years prior in Stenberg v. Carhart, the U.S. Supreme Court struck down Nebraska’s “partial birth” abortion statute because it too lacked a health exception. And I reread Ruth Bader Ginsburg’s dissent. The court got it so, so wrong in a way that is going to be very detrimental in terms of examining science and legislative findings and how much deference the court has to pay to state legislatures or Congress.
Do you have any thoughts about how the use of science will play out in the courts?
LC: I think that [the case’s] “there’s no reliable data, but it’s fair to assume that women come to regret their abortion decisions” invitation to junk science that we got from Justice [Anthony] Kennedy, and other ambiguous language about standards, created enormous harm. It gave courts like [the] Fifth Circuit the tools that it wanted in order to try to uphold the most egregious abortion restrictions.
Because of that case, we really needed a decision like Whole Woman’s Health that says that you’ve got to look at science, you have to base it on real medical facts, and you do have to balance burdens against benefits. Whole Woman’s Health is really important for that reason.
Rewire: Does science have any chance of prevailing in court when you’ve got an opposition that has, essentially, built brick and mortar institutions dedicated to getting science wrong, but legitimizing it in such a way that it can pass for truth?
LC: Well, this brings me back to Gonzalez v. Carhart, right? I remember watching the Nebraska legislative hearing when they passed their 20-week cutoff fetal pain statute. They brought this guy in from Alaska who sat there testifying before the legislature saying, “I am certain that fetuses feel pain at this stage.” He just was certain, with no real evidence. This goes back to something that Justice Kennedy handed them on a silver platter. He basically said, “In Stenberg, what the court said is if you have a body of medical opinion that believes that a particular procedure is safer for some women in some circumstances, you have to have a health exception.” If you don’t need it, you won’t use it. If you need it, you better have it.
Then, in Gonzalez v. Carhart, which says it’s not overturning Stenberg, Justice Kennedy says, “Where there’s a difference of medical opinion … You’ve got a body of medical opinion that says that a particular procedure is safer for some women in some circumstances,” then another handful of people who say, “No, it’s not,” then the tie goes to the legislature. He invites the legislature to say, “Hey, who cares what medical professionals say? It’s up to us.”
Then you move forward to Whole Woman’s Health and you’ve got Justice Breyer writing a decision that says that junk science is just not going to fly. Is there hope for science? We have to hope so.
What we need to do is keep working with the scientists. We need to keep relying on the scientists. We are so privileged to have so many scientists around the country who are researching in this area and who are studying and publishing and providing the kind of support and evidence, really scientifically-based evidence, that we need in order to litigate these cases. That wasn’t always the case. We had a handful of people.
Right now, the fact that there are organizations who are dedicated to science, who are looking at these issues, means that we will be able to keep filing challenges and we will be able to support them.
Rewire: As a repro rights journalist and advocate, I find it pretty difficult to stay positive. Where do you see positive change that people can look to when they’re saying to themselves, “Things are absolutely the worst”?
LC: In Illinois, we passed a law this past year that removes the abortion discriminatory provisions from our public aid code and includes an affirmative statement that the state medical assistance programs have to cover all legal reproductive health care, including abortion. That’s a massive change. That’s a huge step forward for low-income women who need to access abortion care in Illinois.
We have incorporated many of the protections around contraception coverage from the Affordable Care Act into state law, to the extent that we can.
There’s this place in the middle of the country where people can come and they can access abortion care. Right now, that is what we are. We are that place in the middle of the country. Illinois is not perfect. Don’t get me wrong. We have our own share of restrictions. But, because of all of that litigation we did in the ’80s and ’90s here, we have lots of court injunctions. We have consent decrees that we live under. We’ve got protections for this right that you don’t see in other states. These bad laws came here first. Every single year, the ACLU went to court and fought those laws, got them enjoined, and we live with all of those injunctions. We can use that to fight back when they’re proposed again in our legislature.
That inspires me. The incredibly smart and creative lawyers, activists, communication specialists, and journalists who are focused on science and the well-being of women and families and all people in our society are fighting back at my side. There are days when it’s hard to come to work, and then I remember that they’re all out there fighting battles that are probably even harder than the ones I’m fighting.