[cross-posted at Prawfsblawg]
By Jessie Hill
In this second post on the certiorari petition in Whole Women’s Health v. Cole, I want to consider the likelihood that the Supreme Court will take this case, and if it does, what it is likely to do with it.
I think it’s a very good bet that the Supreme Court will decide to hear this case this Term, perhaps in conjunction with one of the other cases that deals with admitting privileges laws – either Currier v. Jackson Women’s Health Organization, another admitting privileges case, in which the Fifth Circuit actually enjoined an admitting-privileges requirement that would have shut down the last remaining abortion clinic in Mississippi, or Planned Parenthood v. Van Hollen, in which the Seventh Circuit enjoined an admitting-privileges law. However, both of those cases are still at the preliminary-injunction stage, unlike Whole Women’s Health, which was rushed to trial on an expedited schedule. Still, SCOTUS has been holding onto the petition in Jackson Women’s Health Organization since the spring and may well decide to consolidate it with Whole Women’s Health. (No petition has yet been filed in Van Hollen, as that case is back in front of the district court and scheduled for trial.)
There are a lot of reasons for the Court to grant cert in at least one of these cases.
There is a clear circuit split, both in outcomes and, as noted in my prior post, in how the relevant legal standard is applied. Moreover, the Supreme Court has not waded fully back into the abortion fray since Gonzales v. Carhart in 2007, and it hasn’t really clarified the undue burden standard since introducing it in Planned Parenthood v Casey in 1992. In the past decade or so, a whole new slew of abortion restrictions has been tried out in the states, and uncertainty reigns in the lower courts.
So what will happen if and when the Supreme Court hears one of these cases? That depends on Justice Kennedy, as usual. There is some reason for the abortion clinics and providers to feel optimistic, as Kennedy, one of the authors of the joint opinion in Casey, must think “undue burden” means something, and the facts in the Texas and Mississippi cases, in particular, are extreme. If he is ever going to find an undue burden is imposed by a purportedly neutral health regulation, it is probably going to be in a case like these. Moreover, these cases deal with access to all abortions, the overwhelming majority of which occur in the first trimester; they don’t involve later abortion procedures—an issue that seems to have caused Kennedy to peel off from his pro-choice colleagues on the Court the Carhart cases in 2000 and 2007. And Kennedy has not been afraid to show some liberal stripes lately, as his opinion on same-sex marriage in Obergefell demonstrated.
At the same time, there is reason for the clinics to be concerned. First, the undue burden standard may be ripe for revisiting. If the Court decides to re-open that can of worms, there’s no saying where its jurisprudence may end up. Perhaps more importantly, Kennedy is a big believer giving deference to legislatures—particularly on medical and scientific issues. Such deference was central to his dissent in Stenberg v. Carhart (the 2000 case striking Nebraska’s so call partial-birth abortion ban), for example, and he struggled with the same issue in Gonzales v. Carhart (the 2007 case upholding the federal Partial Birth Abortion Ban Act). Although he ultimately decided not to rely on Congress’s demonstrably false factual findings, he did so reluctantly, continuing to suggest that Courts need to act modestly in the fact of medical and scientific “uncertainty.” If he sees the admitting privileges issue as one of legislatures’ power to decide on the most appropriate measures to advance health and safety in the face of medical or social scientific uncertainty, the prospects for the plaintiffs may be considerably more grim.