Abortion’s Tumultuous Week

COMMENTARY: In the 18 months since Roe v. Wade was overruled, supreme courts in Montana, North Dakota and South Carolina (at first) have overturned abortion bans in favor of women’s privacy and autonomy. Will the high courts in Arizona, New Mexico, Texas and Wyoming follow suit?

United States Supreme Court in Washington, D.C. The blockbuster news of the week was the high court’s announcement on Wednesday that it would hear the Biden administration’s appeal of the abortion-pill case decided in Texas federal courts earlier this year.
United States Supreme Court in Washington, D.C. The blockbuster news of the week was the high court’s announcement on Wednesday that it would hear the Biden administration’s appeal of the abortion-pill case decided in Texas federal courts earlier this year. (photo: Gary Blakeley / Shutterstock)

It has been an unusually eventful week for abortion in the courts. And that is saying a lot.

This past Monday all eyes were on Texas. That state bans non-therapeutic abortions. The law has achieved its intended effect: So far this year only about 40 abortions have been recorded in Texas. Abortion is permitted only when, in a doctor’s “reasonable medical judgment,” the pregnant woman has a “life-threatening condition,” which makes an abortion necessary to save her or to prevent “a serious risk of substantial impairment of a major bodily function.”

Kate Cox is 20 weeks pregnant and faces neither of these grim prospects. Her lawyer nonetheless persuaded a trial judge to authorize her abortion or, more exactly, to order the state not to enforce the abortion prohibition against her doctor. The reason? Cox’s unborn child has been diagnosed with Trisomy 18, also called “Edwards Syndrome.”

Most media reporting tell you that the baby’s condition is “fatal.” A glance at medical websites demonstrates that it is not so at all. Mount Sinai Hospital in Manhattan is not known as a bastion of pro-life sentiment. But its website states plainly:

“One half of infants with this condition do not survive beyond the first week of life. Nine out of ten children will die by 1 year of age. Some children have survived to the teenage years.”

The Texas Supreme Court rightly dissolved the lower court’s order. In a unanimous opinion issued on Dec. 11 the Court (also rightly) did not even consider the prognosis for baby Cox. The reason is that Kate Cox’s doctor did not claim that her patient’s life or health was endangered — and there was an end to the case.

Cox announced that she would go to another state to abort her child. The lawsuit nonetheless had its desired effect. Thursday’s New York Times headline about the case was this: “Democrats Seize on Texas Woman’s Plight as a Cautionary Tale for Voters.” The same lawyers who represented Kate Cox have challenged the scope of Texas’s medical exception in another pending case.

Texas overshadowed three other state supreme court abortion hearings this past week. None of them is a plain up-or-down test of whether there is state constitutional right to abortion (as in South Carolina and Florida). Two of the three — Arizona and Wyoming — are refracted tests of pro-life judicial leanings. New Mexico’s case includes a frank plea to recognize a state constitutional abortion right. That plea is likely to be deflected. The case includes other grounds on which the court could, and probably will, rule.

Arizona, Wyoming and New Mexico

Arizona has a 15-week abortion ban on elective abortions. The question before the Arizona Supreme Court is not whether that law conflicts with the state constitution. It is instead about how to read that law in light of others enacted when Roe held sway, laws that regulated but did not prohibit abortion. (One could plausibly say that these laws allowed abortion.) The intermediate appellate court adopted a strained, abortion-permissive reading of the whole legal ensemble. Should the Arizona Supreme Court agree, the state Legislature could and should step in to clear up the confusion by, for example, repealing those more permissive laws.

The Wyoming Supreme Court on Tuesday heard argument by Alliance Defending Freedom lawyers representing state legislators who want to “intervene” — get involved as if they are actual parties — in pending litigation, which has halted enforcement of that state’s near total ban on abortion. In April, obtuse county Judge Melissa Owens declared that state constitutional provisions protecting everyone’s right to direct his or her own “health care” trumped the abortion ban. She confessed at a hearing that “I’m just still hung up on abortion not being health care.” The state’s lawyer, Jay Jerde, replied: “Intentional killing of an unborn child cannot be considered to be health care.”

The case is not before the Wyoming Supreme Court on that question. Yet. It is rather now about pro-life lawmakers worried that Wyoming is not doing enough to defend the law. They say that the state has unwisely agreed to let the obtuse judge decide the case without putting on expert evidence to rebut the plaintiff pro-choice doctors, who have submitted affidavits full of medical evidence about what constitutes “health care.” The request to intervene should be granted. Even so, no amount of rebuttal evidence is likely to sway that “hung-up” judge. And Jerde’s reply is sufficient rebuttal for anyone who is not so biased in favor of abortion.

New Mexico is one of the most pro-choice states in the country. So far, that is due to legislation and not yet to a decisive state constitutional ruling. Some pro-life counties this year pushed back by enacting ordinances that banned the shipment of abortion devices and drugs by common carrier or mail. These local rules track a long-standing federal ban — the “Comstock Law”, enacted originally in 1873 — which does the same thing.

In response Attorney General Raul Torrez petitioned the New Mexico Supreme Court to stymie the locals, arguing in part that the state constitution includes a right to abortion. He maintains that “[a]lthough th[is] Court has not decided whether the New Mexico Constitution’s due process guarantees include a right to choose whether to terminate a pregnancy, the broad, protective language of the State’s Constitution supports such an interpretation.”

Oral argument was on Wednesday.

It is best to expect disappointing results in state court abortion cases. There will be some happy surprises, no doubt. But in the 18 months since Roe v. Wade was overruled, supreme courts in several blood red states — Montana, North Dakota, South Carolina (at first) — have overturned abortion bans in favor of women’s privacy and autonomy. Florida might be next in this sad line. Or Kentucky.

On the Feast Day of the Immaculate Conception, a pregnant woman sued there to block that state’s abortion ban. In an earlier decision refusing to stop enforcement, the Kentucky Supreme Court held only that the wrong party had sued. That court emphasized, “To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date.” That “date” has arrived.

One reason for the grim prognosis is that, even in conservative states, high court judges are almost all elite lawyers, educated at law schools enthralled with abortion, who practiced their whole professional lives in a legal world that, due to Roe, treated unborn children as disposable. Many of these judges can scarcely imagine themselves ruling that a law denying all but life-saving abortions is okay. We can now see, too, how pro-life forces are waging asymmetrical warfare. They have to convince both a state legislature to do the right thing about abortion and the state courts to let it stand. For abortion enthusiasts, it is either/or.

None of the cases discussed so far raises in any explicit way a federal constitutional issue. For that reason, the results in Georgia, New Mexico and so on are final. There will be no appeal of those judgments to federal courts.

This is precisely what the Supreme Court of the United States had in mind on June 24, 2022. In the Dobbs decision that day the Court wrote:

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

And this:

“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

The Supreme Court did not say so, but the justices surely knew that they lacked authority to somehow keep the issue out of the state courts. A corrected copy of Dobbs would have the Justices say that they were offloading the abortion question to the states, without the qualifier about the “people” and their “elected representatives”.

But even that correction leaves an error in place. The justices surely knew, too, that they did not rule on the scope of federal power to regulate abortion. The constitutional authority of Congress or the Executive or the administrative state to regulate abortion is considerable. Democrats know it. The Biden administration would “codify” abortion-on-demand if they had the political muscle to do it.

The administration is already pursuing an aggressive strategy in the courts and in the agencies to secure as much abortion liberty as they can wrest. They have, for example, used an absurd reading of a law that requires all emergency room doctors to give “stabilizing” treatment to argue that, for some pregnant women, “stable” includes abortion — even in states (such as Idaho and Texas) that prohibit it. If Wyoming lawyer Jerde were on the scene he might ask, “How stable is the unborn patient after the abortion?”

It has unfortunately become fashionable among Republicans in D.C. to feign amnesia on this whole matter. Many of them opposed last September Sen. Lindsay Graham’s proposed federal 15-week ban. They said that doing so would usurp states’ prerogatives over abortion, a proposition for which they could cite the careless language from Dobbs quoted above. Even Donald Trump, who was elected by pro-life voters and who nominated the justices needed to overturn Roe, is waffling. Trump has walked his utterances on abortion back and forth and back again. But he really did say of Gov. DeSantis’s decision to sign a six-week Florida ban: “I think what he did is a terrible thing and a terrible mistake.”

It is best to expect that the national Republican party will disappoint, too. I doubt that there will be any happy surprises here.

Updated Correction

Now, an updated correction: The Dobbs Court should be heard to say that abortion is not in the Constitution and that it has no place in federal court. Many times since Roe was decided in 1973, leading conservative jurists have audibly wished for just that: an end to federal judges’ entanglement in the abortion quagmire.

Last week we learned that, though the Supreme Court may run from abortion, it cannot hide. The blockbuster news of the week was the court’s announcement on Wednesday that it would hear the Biden administration’s appeal of the abortion-pill case decided in Texas federal courts earlier this year.

On April 7, District Judge Matthew Kaczmarek, in a courageous and well-reasoned opinion, rescinded the FDA’s year 2000 approval of the abortion drug mifepristone. He also overturned several later administrative actions designed to make the pill more easily — almost indiscriminately — obtainable. The Fifth Circuit Court of Appeals affirmed in part and reversed in part.

These judges ruled that the question of initial approval was barred by a statute of limitations and that the complaining pro-life doctors lacked the requisite “standing” (personal stake in the outcome) to challenge FDA approval of generic mifepristone. The appellate court agreed with Kaczmarek, however, to prohibit telemedicine prescriptions and delivery of mifepristone by mail. The combined effect of these two holdings would significantly limit the abortion-pill business.

The Supreme Court earlier this year put these rulings on hold pending the final outcome of litigation. Now we know that the Court will itself resolve the matter by the end of June 2024.

Kaczmarek’s judgment was not premised on the immorality of abortion or upon the presence of a human person from conception onward. (I do not suggest for a moment that Kaczmarek believes otherwise or that he lacks the fortitude to act on those convictions in the appropriate case.) Both he and the appellate judges focused upon legal doctrines about the requisites of a proper lawsuit and the set protocols of valid administrative agency action.

My best guess is that the Supreme Court will take the same position as did the Fifth Circuit and for the same sorts of reasons. It is nonetheless tempting to imagine one of the conservatives on the Supreme Court putting the abortion-pill lawyer or Justice Department co-counsel on the spot. Question at oral argument: “We agree do we not that the FDA certified mifepristone as ‘safe and effective’ for its intended use. Tell me, then. 'Safe and effective’ for whom?”

The mifepristone lawsuit will not be the occasion for the Court to revisit the decisive question of justice and of constitutional interpretation in this epochal struggle: Do “persons” begin at conception? If they do then they are entitled by the Fourteenth Amendment to the “equal protection” of state homicide laws, just the same as you are and I am.

That case is coming, though, because it is inevitable.