Supreme Court Dispatches

The Ideal Allies

Abortion was saved with a dry, wonky, emotionless opinion from a man. Which is kind of perfect.

SCOTUS June 2016
Pro-choice activists celebrate on the steps of the Supreme Court on Monday in Washington, D.C.

Pete Marovich/Getty Images

Climbing the steps of the Supreme Court building Monday morning on the day the court rules to strike down Texas’ absurd abortion restrictions and reassert the constitutional right to an abortion is a bit like trying to force your way through a rave. Supporters of choice are dancing to “Let’s Talk About Sex” and even the court police can be seen to let go an occasional bump or shimmy as they mill about near the doors. Protesters on each side of the issue are fighting to be heard over the club music, and it’s a sea of pro-choice purple T-shirts and signs. But despite the high-energy vibe outside the building, the feeling inside the court is one of relief. For the people who work here, this term has been a marathon that started in February and only got harder as the weeks wore on. This institution doesn’t much like change, it still grieves for Justice Antonin Scalia, and it doesn’t much favor the thumping block party happening in its front yard.

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There’s a little game the press has learned to play as opinions are handed down, and it’s called “Is Elena Smiling?” On Thursday, when the Fisher decision came down, she was all but beaming. This morning she is looking pretty inscrutable. But maybe she’s merely figured out about the game. Former Justice John Paul Stevens slips into a chair at the front of the room to observe the proceedings, just as the session is about to begin.

Whole Woman’s Health v. Hellerstedt is so clearly a case about women, and about the 5.4 million women in Texas who are of childbearing age, and whether the state can make sweeping claims about their health interests, while shutting down all but a handful of clinics in the state. And while oral argument was dominated by the three female justices who more or less peeled Texas Solicitor General Scott Keller like a grape, it seems weirdly fitting, if wholly lacking in drama, that Justice Stephen Breyer reads Monday from his majority opinion in the case, with his customary academic abstraction. He pays extra special attention to the technical questions around claim preclusion and whether a doctrine known as res judicata bars the plaintiffs from even bringing this action in the first instance. The dissent in this case claims that the plaintiffs here have already litigated this issue and should not be allowed, in Justice Samuel Alito’s tart formulation, “to sue, sue and sue again.”

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There is something about the wonky male justice reading at length from the bone-dry claim preclusion section of his opinion that drains the last modicum of gendered passion from the morning. Ruth Bader Ginsburg sits and listens, like a tiny lawn decoration. The justices sit at the bench looking weary. Chief Justice John Roberts appears to have aged five years in the past four months. He may or may not need a haircut. Compared with last year’s opinion announcement in Obergefell, when spectators were openly weeping in the formal chamber, Monday’s session is as formal as a church service.

And then Justice Alito begins to read from his dissent. Except Justice Alito is not precisely reading his dissent because he is freestyling it a bit—speaking great chunks of it from memory, while looking out furiously at the gallery. He is emphatically making the point that the court has abandoned all of its neutral rules of deciding cases, specifically referring to claim preclusion, because the majority seeks to give special treatment to abortion jurisprudence. (This stands in sharp contrast to the majority claim that Texas legislators seek to give special treatment to abortion providers, while doctors who offer liposuction and colonoscopies are left undisturbed). At one point Alito excoriates Breyer for relying solely on the Restatement of Judgments treatise rather than precedent to justify his ruling that claim preclusion doesn’t bar the petitioners from bringing this suit. He notes, wryly, that the doctrine of res judicata “predates the founding of the country. That’s why it’s in Latin.” But as he thumps away at Breyer’s decision, mostly the assembled justices just look down at their papers.

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Outside, in the sun, the protesters are happy but subdued. Again, it’s a far cry from last summer when the celebration of Obergefell took over the restricted areas of the court plaza, above the court sidewalks, and halfhearted guards left them to party. Make no mistake, Whole Woman’s Health is a massive win for choice, even though nobody believed that the very core of Planned Parenthood v. Casey wasn’t in peril this term.* The whole calculus around the abortion fight has suddenly shifted away from pretextual state laws that are couched in the language of maternal health but serve only to endanger the very women they seek to protect. What Breyer’s opinion does is debunk precisely the same flaws revealed in oral argument: It challenges the notion that abortion should be subject to a host of costly and unnecessary regulations if those regulations serve no meaningful purpose and erect insurmountable burdens on the women seeking necessary health care. It also emphatically assures that courts need not and will not defer to legislatures about the truth of these claims.

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And while the morning may be lacking for drama, and the general feeling from the bench is simple relief that all this is over, there is also something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an “ambulatory surgical center,” that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. It’s a case about pretextual laws that could have caused untold damage and about the constitutionally protected right to choose, which has been bolstered by a majority of the Supreme Court that includes two men. Ruth Bader Ginsburg writes a brief and pointed concurrence, but she has long argued that men can be powerful voices for women and that meaningful change will not happen until they are. That may not be quite as sexy as the thumping backbeat of the feminist dissents set to music in Hobby Lobby. But these are the allies who saved the Texas clinics and the core holding of Roe v. Wade. Dry, wonky, res judicata–reciting allies. That is the best kind of victory.

*Correction, June 27, 2016: This story originally misidentified the Supreme Court case Planned Parenthood v. Casey as Casey v. Planned Parenthood. (Return.)

*Update, June 27, 2016: This story also originally said nobody believed that the very core of Planned Parenthood v. Casey was in peril this term. The author meant to propose the opposite. (Return.)

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