The Federal Courts Are Ready to Dismantle Roe

While the Senate fights over Brett Kavanaugh’s nomination, conservative judges prepare for him to strike down abortion rights.

Pro-choice protesters demonstrate in front of the U.S. Supreme Court on July 9, 2018.
Pro-choice protesters demonstrate in front of the U.S. Supreme Court on July 9, 2018. Tasos Katopodis/Getty Images

As the Senate mulls the confirmation of Judge Brett Kavanaugh to the U.S. Supreme Court, anti-abortion judges are wasting no time laying the groundwork for the reversal of Roe v. Wade. Earlier in September, the 8th U.S. Circuit Court of Appeals upheld two abortion restrictions that are patently unconstitutional under Supreme Court precedent. On Wednesday, the 5th U.S. Circuit Court of Appeals pulled the same trick, affirming the legality of an anti-choice Louisiana regulation that’s identical to a law the Supreme Court struck down in 2016.

The statute at issue in June Medical Services v. Gee, Act 620, is a quintessential TRAP law designed to shutter abortion clinics through stringent regulation. Act 620 compels abortion providers to obtain active admitting privileges at a hospital within 30 miles of their clinics. U.S. District Judge John W. deGravelles permanently blocked the law in 2017, ruling that it imposes an “undue burden” on women’s access to abortion and therefore violates the U.S. Constitution. DeGravelles explained that, in 2016’s Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a Texas law that foisted the same admitting privileges rule upon clinics in the state. (It even used the same 30-mile measurement.) The court explained that the Texas statute ran afoul of the Constitution because the benefits it bestowed to women were outweighed by the burdens it imposed on them.

In blocking Act 620, DeGravelles reasoned that, if a law is unconstitutional in Texas, it must also be illegal in Louisiana. That conclusion is quite sensible. After all, lower courts are bound by the judgment of the Supreme Court, which has held this type of TRAP law to be impermissible.

But on Wednesday, in a 2–1 decision written by Judge Jerry Smith, the 5th Circuit disagreed. Smith did not attempt to argue that the admitting privileges rule benefited women in any meaningful way, since the Supreme Court ruled emphatically that it does not. Instead, Smith held that the burden it imposes on women is less severe than that of SB 2. While the Texas law would’ve shut down most of Texas’ abortion clinics, he noted, the Louisiana law will only shutter one, at most. And while it will disqualify some doctors from performing abortions, other doctors can pick up the slack.

Doing some back-of-the-envelope math, Smith calculated that, under Act 620, abortion providers at one clinic would have to work about an extra hour a day to maintain their current pace. At worst, women at this clinic would have to wait roughly an extra hour for their procedures. This delay, Smith concluded, is “unlikely to result in an undue burden on women.” Therefore, Act 620 passes constitutional muster.

This analysis is an extraordinary misreading of Whole Woman’s Health, if not an outright rejection of it. It is also just bizarre, for two obvious reasons. First, HB 2 would’ve brought the total number of Texas abortion clinics down from 40 to 8. In Louisiana, by contrast, there are only three abortion clinics in the entire state. Even if Act 620 doesn’t close an eye-popping number of clinics, it stands to close a third of them, creating a huge burden for women who relied on the shuttered clinic. Smith cannot plausibly allege that the analysis in Whole Woman’s Health hinged upon the fact that Texas tried to close 80 percent of its clinics instead of 33 percent.

Second, Whole Woman’s Health instructed lower courts to weigh the benefits of an abortion regulation against the burdens. It did not decree that the burdens don’t matter if they compel patients to wait only an extra hour, or close only one of three clinics in the state. Since Act 620 creates no benefits for women while imposing real burdens, it must be unconstitutional under Whole Woman’s Health. (In a fiery dissent, Judge Patrick Higginbotham argued exactly that.)

It’s obvious what Smith is really doing here. Justice Anthony Kennedy cast the decisive fifth vote in Whole Woman’s Health v. Hellerstedt to invalidate the Texas law, and he has since retired from the court. He will soon be replaced by Kavanaugh—or, if his nomination falls through, a similarly conservative appointee. At that point, the new five-justice majority will begin chipping away at the constitutional right to abortion access. Anticipating that shift, the 5th Circuit has already begun disregarding precedent. And it has handed the Supreme Court a vehicle through which to further hobble Roe once a new Republican justice is installed on the bench.