The Roberts Court handed reproductive rights advocates a reprieve from the onslaught of abortion clinic closures late Tuesday when it blocked, temporarily, the State of Texas from enforcing yet another provision of HB 2, the massive anti-abortion omnibus bill that has already decimated abortion access across the state.
The one-paragraph order is remarkable for a number of reasons, including the fact that it represents a rare win for abortion rights advocates before the conservative Supreme Court. Notably, that win was made possible because both Chief Justice John Roberts and Justice Anthony Kennedy, two of the Court’s most reliably anti-abortion votes, sided with the liberal justices on the Court in ordering the lower court’s ruling blocking the ambulatory surgical center (ASC) provision of HB 2 to take effect, when just last year those same justices allowed the admitting privileges provision of the law to take effect.
Immediately following the ruling, Center for Reproductive Rights President and CEO Nancy Northup announced that 13 Texas clinics would be able to reopen almost immediately, underscoring just how much power one paragraph from the nation’s highest court can have.
Sex. Abortion. Parenthood. Power.
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It’s tempting to take Tuesday’s action from the Supreme Court as a sign that the tides are turning in the legal battles over abortion rights and access in the federal courts; lord knows it’s nice to celebrate a win from the Roberts Court for a change. But the reality is that this win is fraught with problems for reproductive rights advocates. For starters, the fight over HB 2’s ASC provision now returns to the Fifth Circuit, a federal appeals court that has proven hostile toward abortion rights: Fifth Circuit justices have intentionally crafted opinions testing the boundaries of—and inviting the conservative Roberts Court to overrule—Roe v. Wade. We have no reason to think, given the Fifth Circuit’s near-unbroken record of endorsing anti-abortion restrictions, that it won’t find the ASC provision constitutional as well, which would mean that the clinics that are able to reopen in the wake of Tuesday’s ruling would again have to close if they can’t comply with the law.
But beyond the very real dangers of subjecting Texas patients to the political whims of the Fifth Circuit, the fight over the ASC provision is teeing up a legal question for the Roberts Court that is frankly terrifying. During the initial trial over the ASC provision, Texas District Court Judge Lee Yeakel said the state failed to show that the ASC provision had anything to do with patient safety, rejecting the evidence and expert witnesses offered by the state in defense of the provision. But on appeal, attorneys for the state argued that Yeakel’s ruling got it wrong, and that the burden is on the plaintiffs—the Texas abortion providers challenging HB 2—to prove that the state legislature acted in such a way as to intentionally create an undue burden on abortion rights.
In its brief to the Roberts Court opposing the emergency order, attorneys for the State of Texas outlined this argument:
The district court held that the Texas legislature enacted the ASC statute for the “purpose” of imposing an undue burden on abortion patients, but there are no findings or evidence to support that conclusion. And there is zero evidence in the record that the legislature’s purpose for enacting the ASC requirement was to impose an unconstitutional “undue burden” in the path of abortion patients. Not a single witness at trial testified regarding the motivations of any member of the legislature. No expert opined that the legislature had acted with the purpose of imposing unconstitutional “undue burdens” on abortion patients, and no fact witness testified about any legislative communications or statements that might reveal a constitutionally impermissible motive on the part of the legislature.
From there, the attorneys for the state argued for the “well-meaning but willfully ignorant” standard when courts review anti-abortion restrictions.
And even if the district court were correct to note the “dearth of credible evidence” that the ASC requirement will produce “better patient health outcomes,” the legislature may still have believed in good faith that the ASC law would improve patient health and safety. The plaintiffs bore the burden of producing proof that improper purposes rather than a good-faith belief in the law’s stated justifications motivated the legislature, and they produced no evidence on this score.
Taken together, the state argues that the standard for federal courts in judging state legislative action restricting fundamental rights like abortion is, effectively: believe whatever lawmakers say, unless there is specific evidence that those lawmakers intended to pass an unconstitutional law. It doesn’t matter that Texas lawmakers produced a “dearth of credible evidence” to connect the HB 2 restrictions to advancing patient safety; all those lawmakers needed to do is “believe in good faith” that the law would improve patient health and safety.
Anti-choice advocates “believe in good faith” that Plan B is an abortifacient, and they “believe in good faith” that sending a bomb threat to an abortion provider is constitutionally protected free speech. Likewise, climate-change denialists “believe in good faith” that global warming is a sham. The entire far right is built on lawmakers believing their positions “in good faith,” despite all the objective, scientific evidence to the contrary. If the courts have no role in checking that willful ignorance—as both the Texas attorney general’s office and the Fifth Circuit suggest—we really are doomed.
The argument that it is the role of the federal courts to turn a blind eye to lawmaker motive is not just misleading, it’s downright dangerous. That’s just the kind of argument conservatives on both the Fifth Circuit and the Roberts Court love, because it can be couched in a faux-objectivism that has come to define the conservative legal movement, and most importantly Chief Justice Roberts.
It’s also an argument not confined to abortion rights jurisprudence. It’s no surprise that the legal fight over voting rights in Texas has mirrored the fight over abortion access. In both cases, a federal district court struck restrictions on these fundamental rights because lawmakers’ stated purposes—protecting patient safety and preventing voter fraud—was not supported by the evidence and because those restrictions had the effect of taking away power from minority constituencies. In both cases, a conservative panel of Fifth Circuit judges granted emergency requests by the Texas attorney general to let the restrictions take effect anyway. Voting rights advocates challenging the Texas voter ID requirement plan to ask the Roberts Court to intervene in that fight as well, which would mean another emergency order while a constitutional challenge plays out in the federal appeals courts.
That’s why it’s important to not read too much into Justices Kennedy and Roberts initially joining with the liberal justices in blocking the State of Texas from enforcing the ASC provision of HB 2. Tuesday’s ruling wasn’t on the merits of the requirements, and given the number of legal challenges related to HB 2, and copy-cat bills in places like Wisconsin, Mississippi, Louisiana, and Alabama, it’s almost certain Roberts and Kennedy will have the chance to consider these restrictions, as soon as this term. In other words, just because Roberts and Kennedy didn’t vote to let the ASC provision take effect, that doesn’t mean they think the provision is unconstitutional.
It also means the Roberts Court will potentially be looking at the merits of these abortion rights cases at the same time as it considers the merits of the voter ID challenges, with both cases presenting a larger question of what role federal courts (including the Supreme Court) serve in checking lawmaker bias in restricting fundamental rights. And given the Roberts Court’s embrace of both post-racism and abortion-regret mythology, that’s a long-term forecast that does not bode well for equal rights.