207 pro-life lawmakers in Congress ask the Supreme Court to overturn Roe v. Wade
Michelle Williams' pro-choice Golden Globes speech, and clinics face closures in Ohio and Massachusetts
Hello! It’s Thursday, Jan. 9. Here’s what’s been going on since the start of 2020. It’s a lot.
In the News
We’re going to begin and end with the 207 members of Congress who’ve asked the U.S. Supreme Court to consider overturning Roe v. Wade.
Their brief to the Court was written by Americans United for Life, the leading pro-life legislative and legal group, and more specifically by a lawyer who originally helped Louisiana defend the 2014 law at issue before the Supreme Court.
Short recap: In March, the Supreme Court will hear arguments in a monumental abortion rights case from Louisiana: June Medical Services v. Gee. Many expect the Court to use the ruling to either further chip away at constitutional abortion rights—or, as the brief notes, it could use the case to overturn the 1973 ruling that established them.
So: 39 Republican senators and 166 Republican House members, plus two House Democrats, argue the Court should overturn Roe v. Wade and its major progeny, Planned Parenthood v. Casey. At the very least, the brief argues, the Court should overrule its own precedent from 2016, which again upheld abortion rights against state laws with dubious health benefits, a case called Whole Woman’s Health v. Hellerstedt.
What might sound extreme is revealed, especially through this brief, to be a careful argument that incorporates decades of anti-abortion lawmaking and the ensuing legal battles into a single point: Roe’s contentious history proves it is “unworkable,” and so it should be overturned.
The progressive Court watcher Mark Joseph Stern dubbed this “the lie that may kill Roe,” a way for the pro-life movement to use its own dissatisfaction with Roe to convince the high court that the ruling can’t work. He summarized it this way: “Persuade states to test the limits of abortion rights, convince courts to push beyond those limits by feigning confusion, then ask the Supreme Court to scrap those limits because they’re unworkable.”
The National Review senior editor and Bloomberg opinion columnist Ramesh Ponnuru took the opposite view, calling the argument “a strong one that could eventually prove decisive.”
Ponnuru writes: “The legislators persuasively make the case that the Supreme Court’s abortion jurisprudence has not been internally consistent on key points and has not provided clear guidance to states about how they can and cannot regulate abortion.”
The brief fits perfectly within what should be a pivotal year for reproductive rights battles, legal and otherwise. “It's game on in the legislatures, and it's game on in the courts," one pro-life leader has said.
The Trump administration has filed its own brief with the Court, arguing Louisiana’s law should be upheld and that the law’s purported benefits “are more than sufficient to justify” any burden.
Amid this, one writer underlined what abortion rights groups have been saying for years: Much of the nation is already living in the post-Roe world.
Elsewhere in the News:
Michelle Williams lit the internet on fire Sunday night with her plea for women to vote “in your self-interest” and advance reproductive rights through the polls. The actress drew applause and condemnation for her comments at the Golden Globes from the corners you’d expect.
Progressives praised her for underlining that “abortion isn't the enemy of motherhood,” and for her speech’s “rhetorical elegance.” Pro-life outlets responded with outrage, highlighting the words of pro-life activist Abby Johnson, who tweeted the actress had traded “an innocent human life for a tiny golden statue,” and the response of a Catholic app founder about to giving birth to her fifth child, who wrote on Instagram that “new life never keeps us from our dreams.”
Others had a more nuanced take—and wished Williams had gone further.
Virginia is preparing to ratify the decades-old Equal Rights Amendment—a move that could have repercussions for reproductive rights by enshrining gender equality in the U.S. Constitution. But there’s a long, unruly road ahead. For one, the U.S. Justice Department said this week that the ratification deadline has long since passed.
Cincinnati’s last abortion clinic could be forced to close, after one of its four doctors retired. This is the lastest in the clinic’s long battle to stay open. Ohio law requires abortion clinics to have transfer agreements with hospitals, and also bars public hospitals from entering into such agreements. The workaround has been for clinics to petition the state health department to approve their license based on having a set number of back-up physicians—see my investigation from last year on how Ohio’s health department has shut down clinics via these rules.
Texas has spent $5.6 million fighting legal battles over anti-abortion laws.
New Jersey is funneling 9.5 million to family planning services, including funds for Planned Parenthood affiliates—another sign of states boosting their own health services in the wake of the Trump administration changes that caused Planned Parenthood to withdraw from the major federal family planning program, Title X.
Here is a good look at how hard it can be for doctors to learn how to perform abortions.
New research draws the link between fetal personhood arguments among pro-life groups and legislators and the language of civil rights movements. On the topic of fetal personhood, pro-life groups believe abortion is the world’s leading cause of death.
Democratic attorneys general have filed a brief with the Eight Circuit Court of Appeals, one of the most conservative courts in the nation, urging the bench to uphold a lower court’s injunction against three Arkansas anti-abortion laws. The laws at issue include an 18-week abortion ban and a ban on abortions after a Down syndrome diagnosis.
Massachusetts’ third-busiest abortion clinic could close over lack of funding. It’s launched a GoFundMe page seeking $250,000.
Also in Massachusetts, a majority of the state legislature is supporting a proposed law to expand reproductive rights in the state. The “Roe Act” (introduced last year) would make the right to abortion explicit in state law, and it would eliminate the need for minors to obtain the consent of a parent or guardian, or seek the approval of a judge before having an abortion. Among other changes, it would also expand access to abortion after 24 weeks of pregnancy in certain circumstances.
The process of getting a judge’s approval is called “judicial bypass.” It’s present in 36 states; 37 states require some kind of parental notification or consent, and Florida looks likely to become the 38th this year. Judicial bypass places a minor’s ability to get an abortion in hands of a single judge (and their views on abortion), often includes delays, and depends on the child or teens’ ability to go through the legal process (including, for example, traveling to the court hearing, or even knowing where to find help).
Whether abortion is Planned Parenthood’s key “mission” or “business” is a regular talking point in pro-life media, found again this week after Planned Parenthood released its annual report, and one amplified during last year’s messy leadership battle that saw the swift departure of Dr. Lena Wen after less than a year in charge.
We’re heading into the season of pro-life marches in D.C. and across the U.S., and pro-life leaders say they’re going to highlight the GOP’s key claims that failed abortions result in live births—and push for a “Born-Alive Abortion Survivors Protection Act” that would require doctors to treat such babies. Reproductive health groups say the law has no foundation in reality and paints “a picture of sensationalism and gore.”
Finally, here’s a look at the impending consequences of a new federal rule forcing insurance providers to bill separately for abortion coverage—part of the Trump administration’s anti-abortion health policies.
Photographic interlude
Here’s something nice: The flora of NOLA.
The 2020 SCOTUS case—The call to overturn Roe v. Wade
Your weekly dive into a pivotal abortion rights case, this week the brief from pro-life lawmakers and Americans United for Life
In March, the Supreme Court of the United States (SCOTUS) will hear arguments in a monumental abortion rights case from Louisiana: June Medical Services v. Gee. The Louisiana law would require abortion doctors to have hospital admitting privileges within 30 miles of the clinics where they work, and is identical to a Texas law struck down by the Supreme Court in 2016, Whole Woman’s Health v. Hellerstedt. The Fifth Circuit Court of Appeals upheld the law in 2018.
Abortion providers say the law would close two of Louisiana’s remaining three abortion clinics, and perhaps all three, which collectively performed about 8,000 abortions in 2018.
On Jan. 2, as noted above, 207 members of Congress and Americans United for Life submitted a brief to the Supreme Court asking it to consider overturning Roe v. Wade.
Here are the major points of the brief:
The brief begins by challenging the Supreme Court’s own 2016 precedent Whole Woman’s Health, arguing it “created an overly subjective ‘balancing’ test, leading to confusion among Congress and state legislatures alike as to which laws might withstand constitutional scrutiny.”
NOTE: State (and federal) lawmakers have been hostile to Roe since it was decided in 1973 and have passed laws aimed at challenging or overturning it ever since so state laws aren’t a neutral barometer of whether abortion precedents are understandable.
The brief argues Louisiana abortion clinics have “a long history of health and safety violations and Louisiana abortion doctors have a long history of professional disciplinary actions and substandard medical care.” As a result, it continues, there’s a conflict of interest between these clinics and doctors and their patients, and thus they shouldn’t be able to sue the state on behalf of their patients’ constitutional right to abortion.
NOTE: Many state health departments have enacted abortion-specific regulations and rules (more than 1,000 in Louisiana, by one count), and likewise cannot be assumed to be neutral to abortion in pro-life states (as my reporting has found); nor, again, can state legislatures which create abortion-specific regulations; nor, again, can state medical boards in dominantly anti-abortion states. This isn’t to say all these actors are necessarily antagonistic. NOTE #2: There is a difference between violations of state regulations (which can run the gamut from serious to minor) and safety. Abortion is extremely safe, in Louisiana and elsewhere. If it weren’t, the brief would no doubt argue that point.
The brief continues to argue that the very fact abortion providers have sued states over anti-abortion laws “designed to protect their patients” proves they don’t have the “close” relationship required to sue on behalf of their patients: “It is impossible for abortion clinics and doctors to share or represent the interests of their patients when they seek to eliminate the very regulations designed to protect their patients’ health and safety.”
NOTE: See above, re: neutrality of legislatures/states passing pro-life laws.
“The Fifth Circuit labored to do the best it could with the vague and opaque ‘undue burden’ standard on which the Court has relied since Casey,” the brief states. It argues that “the court’s struggle—similar to dozens of other courts’ herculean struggles in this area—illustrates the unworkability of the ‘right to abortion’ found in Roe and the need for the Court to take up the issue of whether Roe and Casey should be reconsidered and, if appropriate, overruled.”
NOTE: The Fifth Circuit is notoriously conservative (it, for instance, upheld the Texas law that gave us the Whole Woman’s Health ruling, in which SCOTUS overturned the Fifth Circuit’s decision). One of the judges who supported the court’s decision to uphold Louisiana’s law has also decried the “the moral tragedy of abortion.” Lawyers for Louisiana’s abortion providers have slammed the Fifth Circuit decision as “brazen.” It’s been elsewhere criticized as a direct flaunting of the 2016 precedent, one made on the eve of Trump’s second appointment to the Supreme Court. Judges have also been appointed to the judiciary who believe Roe was wrongly decided (on purpose, by Republican presidents, for decades). And judges can and do have different views of how to apply precedent, which is why the federal judiciary has levels of review.
The brief states that stare decisis—the respect for precedent—is “not an ‘inexorable command,’ much less a constitutional principle” but a “prudential and pragmatic judgment.” It also called Roe “radically unsettled precedent” that has resulted in a “jurisprudence has been haphazard from the beginning.”
NOTE: The Supreme Court overturned two precedents just last year; Justice Elena Kagan and Justice Stephen Breyer raised alarms over the Court’s appetite to do so, warnings some suggested could imply the future of abortion rights.
The brief ends by stating that the “abortion issue” has clearly not been settled, and “it is time for the Court to take it up again.”
Resources
For research on abortion and reproductive health in the U.S. and internationally, including abortion laws and regulations, see the Guttmacher Institute and Advancing New Standards in Reproductive Health (ANSIRH).
For information on abortion clinics and providers, see the National Abortion Federation, which has an incomplete list of providers nationally. Physicians for Reproductive Health works on policy, lawsuits and advocacy. The Reproductive Health Access Project helps primary care physicians provide complete reproductive care.
SisterSong advocates for reproductive justice for women of color, non-binary and minority folks. There’s also the National Latina Institute for Reproductive Health.
The Center for Reproductive Rights and the ACLU fight reproductive rights lawsuits.
NARAL Pro-Choice America and Planned Parenthood Federation of America advocate for reproductive health and rights, and Planned Parenthood and its affiliates also file lawsuits on behalf of their clinics, doctors and patients.
(Let me know if you think you know a national organization that should be listed here.)