Opponents of Texas’ HB 2 filed more than 40 amicus briefs with the Supreme Court on Monday detailing the devastation the massive anti-abortion omnibus bill and other similar policies have wrought on patient health and safety in the state. Provisions of these laws, some of which the Court will consider in March, require doctors to obtain admitting privileges at nearby hospitals, and abortion clinics to meet the same architectural standards as stand-alone surgical ones—resulting in the closure of reproductive health facilities all over Texas.
Monday’s filing was an impressive show of force from a diverse coalition of groups and individuals. More than 100 women in the legal profession who have exercised their constitutional right to an abortion shared their stories with the Court. Social scientists explained how barriers to abortion may have negative socioeconomic effects on women and children. Health economists made the argument that the targeted regulation of abortion providers (TRAP) restrictions at issue are essentially anti-capitalist and create significant inefficiencies in the health-care marketplace. Even the noted evolutionary biologist and atheist Richard Dawkins weighed in, skewering the “experts” used to prop up claims that curbing access to reproductive health care actually improves patient health outcomes. But despite the number of voices chiming in against HB 2 and the variety of issues they raised, there was a clear, simple, uniform ask before the Roberts Court: If you respect the dignity of women, then you must strike down these clinic closure laws.
I don’t know just how many times the word “dignity” appeared in the friend of the court briefs, because, frankly, after about the fifth one I lost count. But it was a lot, and for good reason. Dignity has special constitutional meaning. The Court has historically found that laws preventing interracial marriage and same-sex marriage harmed the constitutional dignity of those affected by denying them equal protection and due process. Laws that mandated certain populations—like felons and mentally ill people—to be sterilized did the same. And Whole Woman’s Health v. Cole is, at its very core, a case about what level of constitutional respect the state must pay to women’s dignity. “Trust women”: It’s not so much a request of those opposing HB 2, but a demand.
Even so, arguing that the conservatives on the Roberts Court must respect the dignity of women by striking provisions designed to regulate access to abortion out of existence is tricky business, especially when those provisions have been dressed up by anti-choice lawmakers to “protect women.” And it’s particularly tricky business when the one conservative vote opponents of HB 2 need is from Justice Anthony Kennedy, who, in the last major abortion rights case before the Court, bought without a shred of evidence the baseless idea that women experience “post-abortion regret syndrome,” and, as a result, need the steady hand of the state to guide them through making their own medical decisions. This suggests that Justice Kennedy is a little confused on how the law should respect the dignity of women. Or at least he was.
Roe has collapsed and Texas is in chaos.
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A lot has changed since Kennedy’s 2007 decision in Gonzales v. Carhart, including Justice Kennedy’s jurisprudence on dignity. Nowhere is this more evident than last summer’s landmark marriage equality decision, Obergefell v. Hodges. Writing for the majority of justices in striking as unconstitutional state-level bans on same-sex marriage, Justice Kennedy relied heavily on the notion that those bans, grounded in outdated sex-based stereotypes of “traditional family,” create significant harm to the dignity of LGBTQ people who wish to marry. Same-sex marriage bans exclude LGBTQ couples from the fiscal benefits associated with marriage, Justice Kennedy noted, harming their economic dignity. Those bans also suggest that LGBTQ people are somehow “lesser citizens” than non-LGBTQ people in the eyes of the government, which harms the dignity of those promised equal protection under the law, the opinion states. Same-sex marriage bans also harm the dignity of LGBTQ people’s children, since those laws also communicate a lesser status to the family. If there was one thing Justice Kennedy’s opinion in Obergefell seemed to get right, it was that the government has the power to inflict great harm to people when it passes laws restricting individual reproductive and sexual autonomy grounded primarily in outdated sex and gender stereotypes.
Advocates clearly hope that is a lesson Justice Kennedy brings to Whole Woman’s Health v. Cole. They address the dignity harm HB 2 creates by significantly restricting access to abortion providers, thus subjecting women to substandard health care. They address the dignity harm imposed by the economic hardship that follows denying women reproductive health care when they need it. They address the dignity harm to the family members of the women who are already mothers, who either can’t obtain an abortion or must go through great lengths to get one, even in the cases of fetuses that are not compatible with life. Their amicus briefs are nothing if not a stunning defense of the value of the lives of women and the need to place them above conservative, political ambition.
Personal stories also go a long way for Justice Kennedy. Reportedly, one of the main influences that led the conservative and Catholic justice to become an advocate of sorts for LGBTQ rights was his longtime friendship with Gordon Schaber. Schaber was a law school dean who helped get Kennedy appointed to the Court in the wake of the failed Robert Bork nomination. Schaber, suspected by many of his friends to be a closeted gay man, died in 1997. Colleagues have said Kennedy’s friendship with him, along with the opportunity to witness his experiences, helped the justice to really weigh the personal effect of the gay rights cases the Court considered. Which is why it matters that, in addition to the many well-respected institutions filing briefs in opposition to HB 2, hundreds of women shared their personal stories of benefiting from abortion, and of being harmed by baseless abortion restrictions—very plainly telling the Court the decision they made to terminate their pregnancy was the right one, politics be damned.
HB 2 supporters have until February 3 to respond to arguments that the law’s requirements unduly burden abortion rights and therefore harm the dignity of women. Their response will likely not address the dignity of women needing abortion at all and instead focus on the power of the state to “advance and protect fetal life.” If so, it would be hard to find a clearer example of the inherent anti-woman foundation of the anti-choice movement than an argument that literally erases the pregnant woman and replaces her judgment with that of the state’s.
Will a strategy of appealing to Justice Kennedy and the dignity doctrine through personal stories and detailed analysis of the various harms caused by anti-abortion laws pay off for HB 2 opponents, and get the justice to cast his first vote for abortion rights since 1992 and Planned Parenthood v. Casey? I think it will. And if it doesn’t, I can’t think of a strategy that would.
Advocates made it clear in their briefing that regardless of personal objections to abortion, the right to decide when and when not to parent is a fundamental one, not to mention part of the equally fundamental right to reproductive autonomy. Does the Roberts Court trust women enough to call shenanigans on anti-choice lawmakers who argue that closing abortion clinics is the best way to grant women that reproductive autonomy? In other words, just how much dignity is Justice Kennedy willing to extend to women? I’m hopeful it’s enough to avoid rolling reproductive rights back more than 50 years.