Will the Roberts Court overturn Roe v. Wade?: Part I

With the airwaves dominated by talk about “legitimate rape” and “forcible rape” (as opposed to their nonsensical counterparts, “illegitimate rape” and “consensual rape”), it is clear that the War on Women rages on. At stake is not merely offensive language, but real battles over the ability of women to control their own bodies and destinies. Yet another episode in this fight may be coming soon, this time before the U.S. Supreme Court. A series of lawsuits making their way through the federal and state courts may be setting the stage for the Supreme Court to overturn Roe v. Wade as it nears its 40th anniversary in 2013.



Photo via ellabakercenter.org

This post is the first in a three-part series describing the recent legal skirmishes about a new wave of proposed or enacted laws restricting reproductive rights across the country. It is difficult to predict which case, if any, will be heard by the Supreme Court, but the attempts to restrict women’s right to choose range far and wide, including legislation that

• grants “personhood” to fetuses in Oklahoma and Missouri
• mandates non-medically necessary ultrasounds in Oklahoma, North Carolina, and Texas
• requires doctors to provide non-medically necessary information to women seeking abortions in South Dakota, Nebraska, and Indiana
• restricts abortions after 20 weeks in Arizona and Idaho
• bans certain abortion drugs so that abortions have to be performed in a hospital in Ohio
• places undue restrictions on abortion providers in Mississippi and Louisiana
• defunds Planned Parenthood’s non-abortion services in Texas
• denies health insurance coverage for reproductive services in Kansas
• denies or limits access to Plan B in Florida and Washington

The framework for these legal challenges is necessarily the Supreme Court’s 1992 plurality decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that decision, the Supreme Court upheld a woman’s right to choose as established by Roe v. Wade, but created a new test to determine whether an abortion regulation was constitutional. Under Casey, a law is constitutional if it does not place an “undue burden” on a woman’s right to have an abortion. An abortion restriction that has only the incidental effect of making it more difficult or expensive to get an abortion would be constitutional. However, if a regulation is implemented in order to obstruct the right to choose rather than to effectuate a legitimate health purpose, it may be unconstitutional. Much ink has been spilled over the past 20 years regarding what is or is not an “undue burden,” but the practical effect of Casey has been to allow more restrictions on access to abortion.

In this first post, we will focus on the cases and issues that have the best chance of reaching the Supreme Court in the near future.

An extreme "personhood" amendment makes its way to the Supreme Court

One of the most serious recent challenges to Roe comes in the innocuously named In Re Initiative Petition No. 395 State Question No. 761 out of Oklahoma. On July 30, 2012, an anti-choice group called Personhood Oklahoma filed a cert petition to the U.S. Supreme Court in its push for a “personhood” amendment. The personhood amendment would grant full rights and privileges at conception. Notably, it does not include standard language deferring to the Constitution or the Supreme Court, in effect, snubbing Supreme Court precedent. In April, the Oklahoma Supreme Court ruled against the proposed amendment as unconstitutional under Casey.

In 1989, the Supreme Court considered a challenge to a similar Missouri law in Webster v. Reproductive Health Services. The states’ laws are similar because they both grant the rights and privileges of personhood at the moment of conception, but the Missouri law specifically defers to the Constitution and the Supreme Court. Additionally, the Missouri law was primarily aimed at restricting state abortion funding and services, including the life-at-conception language only in the preamble to the law. In contrast, the Oklahoma proposal would add life-at-conception language as an amendment to the state constitution, allowing for the possibility that abortion could be classified as murder.

Although the Oklahoma law goes further than the Missouri law, suggesting that it might not survive scrutiny by the Supreme Court, the composition of the Supreme Court is also different than it was in 1989: most notably, Thurgood Marshall has been replaced by Clarence Thomas and Sandra Day O’Connor has been replaced by Samuel Alito. This shift in personnel could well make the difference in the Court’s reproductive rights jurisprudence.

The U.S. Supreme Court will decide in the next couple of months whether to hear Personhood Oklahoma’s appeal.

A court split on mandating non-medically necessary ultrasounds

There is a court split regarding whether states can require women to undergo ultrasounds before they have an abortion. The split makes it more likely that the Supreme Court may accept the case in order to standardize laws in the different states.

More than 20 states have a mandatory ultrasound law according to a recent report from the Guttmacher Institute (PDF). The severity of the laws varies, from actually requiring an invasive ultrasound, to requiring doctors to provide anti-choice brochures and pamphlets to a woman. Oklahoma, North Carolina, and Texas have some of the strictest requirements. In March, Oklahoma’s ultrasound law with so-called “speech-and-display requirements” was struck down by an Oklahoma federal district court in Nova Health Systems v. Edmonson. Speech-and-display requirements mean that the doctor performing the abortion must present an ultrasound image of the fetus to the woman and describe its anatomy to her.

Such requirements have also been challenged in North Carolina. In December 2011, District Court Judge Catherine Eagles preliminarily enjoined these requirements in Stuart v. Huff. She found that the speech-and-display requirements were unconstitutional under the First Amendment and that there was no medical purpose to support a governmental interest in the law.

Pro-choice advocates in Texas have not been as successful. Chief Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit upheld a mandatory ultrasound law with speech-and-display requirements in Texas Medical Providers Performing Abortion Services v. Lakey. Jones ruled in another notable abortion case, McCorvey v. Hill, in which Norma McCorvey, a.k.a. “Jane Roe,” who has become an anti-choice activist, sought to have the Supreme Court’s judgment in Roe v. Wade overturned thirty years later. In addition to writing the majority opinion rejecting McCorvey’s claim, Jones wrote a separate concurring opinion to criticize the Supreme Court’s decision in Roe.

The Fifth Circuit’s decision in Lakey bound District Court Judge Sam Sparks to uphold Texas’ “informed consent” abortion law on remand. Judge Sparks explicitly criticized the Texas law as a way to discourage women from getting abortions. As a result of the ruling, Texas abortion providers are required to perform and display a sonogram and to play the heartbeat for the woman seeking an abortion. Additionally, there is a mandated 24-hour waiting period after the sonogram is performed.
The split between federal courts in Oklahoma, North Carolina, and Texas regarding similar speech-and-display laws suggest that this issue may well end up before the Supreme Court at some point soon.

Up next . . .

Part II will explore legal challenges to laws that require doctors to provide non-medically necessary information to women seeking abortions, restrict abortions after 20 weeks, and ban certain abortion drugs so that abortions have to be performed in hospitals.

Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.