An Historic Attempt To Kill Roe v. Wade May Backfire Spectacularly On The Anti-Choice Right

CREDIT: DOUG MILLS/THE NEW YORK TIMES VIA AP, POOL

It was supposed to be an epic battle over the fate of Roe v. Wade.

Next week, the Supreme Court hears oral arguments in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s ambitious anti-abortion law HB2. If this law is upheld — a very real possibility in a conservative Supreme Court — Roe v. Wade would have most likely remained alive in name only. States would gain sweeping new power to shut down abortion clinics, so long as they dressed up the laws they enacted to end access to abortion as health regulations.

Except that opponents of abortion no longer have the fifth vote they need to gut Roe. Justice Antonin Scalia’s death means that Roe shall live at least another year. Whether it survives past next year, however, could very well be decided by whoever gets to fill Scalia’s seat.

The Masterminds

HB2 is the brainchild of the sophisticated anti-abortion group Americans United for Life (AUL). The law imposes expensive architectural and other requirements on abortion clinics, as well as often-difficult-to-obtain credentialing requirements on abortion providers. If the Supreme Court allows the law to take full effect, at least 32 of the 40 abortion clinics that existed in Texas before it was enacted are expected to shut down.

AUL, moreover, does not hide its goal in pushing such legislation — as ThinkProgress’ Erica Hellerstein reported, AUL functions as a “legislation mill” producing anti-abortion bills that can be copied and enacted in many states. The anti-abortion group brags on their website that they work “through the law and legislative process to one end: Achieving comprehensive legal protection for human life from conception to natural death.” Overruling Roe v. Wade, according to AUL, “can be accomplished through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.”

Just over one week ago, Whole Woman’s Health appeared poised to become AUL’s crowning achievement. Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may not enact laws that place an “undue burden” a woman’s right to choose abortion — a vague standard that’s proved quite malleable in the hands of abortion opponents. At the same time, states may legitimately regulate all medical clinics, including those that provide abortions, to protect the health of individuals who seek treatment from those clinics. Whole Woman’s Health asks what happens when a state enacts abortion restrictions disguised as health regulations.

The clinic regulations and credentialing requirements at issue in this case will do little, if anything, to advance women’s health. But they make it a whole lot harder to obtain an abortion. Thus, a decision upholding HB2 could potentially return women to a world much like the one that existed prior to Roe. States may not actually be allowed to openly ban abortion after such a decision, but they’d have broad authority to restrict abortion just so long as they are clever enough to devise anti-abortion laws that look like health laws. And if state lawmakers proved inept at this task, groups like AUL would be more than happy to give them a hand.

Now, however, with Scalia’s seat vacant and the Court evenly divided between Democratic and Republican appointees, the likelihood HB2 will be upheld outright is vanishingly small.

No Longer The Man in the Middle

Before Scalia’s unexpected death, all eyes were on Justice Anthony Kennedy, the closest thing the Roberts Court has to a swing vote on abortion. As a general rule, if your plan of attack against an abortion restriction depends on winning Kennedy’s approval, you need a better plan. Prior to HB2, Justice Kennedy considered 21 abortion restrictions as a member of the Supreme Court andallowed 20 of them to take effect. In one case, Kennedy justified an abortion restriction in part because he thought that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

(It also seems unexceptionable to conclude that some people come to regret their choice to bring a dangerous firearm into their home, yet this insight has not animated Kennedy’s votes in Second Amendment cases.)

Yet, while Kennedy’s opinions reveal an almost visceral revulsion towards abortion, he’s also proved unwilling to overrule Roe outright. Kennedy co-authored the Casey opinion, which limited abortion rights, but which also purported to hold that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

Thus, before conservatives lost their majority on the Supreme Court, the most important question in Whole Woman’s Health was likely to be which Justice Kennedy shows up to work next week — the one that consistently upholds abortion restrictions or the one that is unwilling to invalidate Roe in its entirety. Kennedy, moreover, gave hope to Team Choice when he cast the fifth vote to stay a lower court order upholding nearly all of HB2.

Uncertain Process

Now that the Court is evenly divided between liberals and conservatives, Kennedy no longer has the power to drive a nail in Roe‘s coffin, but he could still have the power to do considerable damage to the right to choose. The ordinary rule when the Court splits 4-4 is that the lower court’s decision is affirmed and the justices’ decision does not have any precedential value. Because the court of appeals largely upheld HB2, a 4-4 decision in Whole Woman’s Health would allow the Texas law to almost entirely remain in effect — at least until a fifth justice is confirmed to the Court and another abortion case reaches the justices.

Thus, as Cosmopolitan’s Jill Filipovic notes, Scalia’s death may actually make it more likely that Justice Kennedy votes to uphold HB2. “If Scalia were still alive, Kennedy might be choosing between overturning Roe and invalidating the Texas law,” Filipovic writes. Now, however, he doesn’t have to choose between two options that he’s likely to view as undesirable. Rather, if he sides with the conservatives he will leave lower court’s opinion in place without creating a precedent he may later come to regret. “For this particular justice, who seems to find abortion troubling but may not want to see it outlawed wholesale,” Filipovic notes, “that may be a desirable outcome.”

There is, however, some uncertainty about whether Kennedy will have this option. As SCOTUSBlog’s Tom Goldstein notes, the Court’s past practice when a vacancy opened in the middle of a term was to hold cases where the justices split over until the next term, when the open seat presumably would be filled. Given the extraordinary obstructionism Senate Majority Leader Mitch McConnell (R-KY) has already planned against anyone President Obama sends up to fill this seat, it remains to be seen whether the justices will decide to hold over split decisions until next term or simply affirm the case by an evenly divided vote and be done with it.

Which process they choose could matter a great deal in Whole Woman’s Health. Recall that Kennedy provided the fifth vote to stay the lower court’s decision upholding HB2. That order provides that the stay shall last until “the issuance of the judgment of this Court.” Thus, if the Court holds the case over for reargument next term, the stay remains in effect until the Court decides the case, and HB2 does not go into effect. If the Court affirms the lower court by an evenly divided vote, by contrast, that counts as a “judgment” of the Supreme Court, so the clinics most impacted by HB2 will close.

The choice whether to hold the case over could also matter for an entirely different reason. If President Obama (or a similarly minded president) manages to fill Justice Scalia’s seat, one of the first matters taken up by the Court’s new liberal majority would be a major abortion case. That would not only give them the opportunity to strike down HB2, it would also give them the chance to expand a right to choose that has been gradually chipped away after decades of conservative decisions. The vague “undue burden” standard that now controls abortion cases was pushed by abortion opponents including the Reagan Justice Department and AUL itself before it was ultimately adopted by the Supreme Court. A more liberal Court could scrap this standard altogether or, at the very least, clarify it in a way that does not permit anti-abortion judges to take advantage of its vagueness.

Rather than becoming AUL’s crowning achievement, in other words, Whole Woman’s Health could be their most demoralizing defeat.

Yet that outcome depends entirely on who gets to fill Justice Scalia’s seat. If the next justice is more like Scalia, Whole Woman’s Health could still become AUL’s greatest triumph.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

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Republican Presidential Candidates Want You To Know They Are Against LGBT Rights

— by Zack Ford Dec 8, 2015 4:20 PM

Marco Rubio, Ben Carson, and Ted Cruz at the Presidential Family Forum in Iowa last month.

Over the past few weeks, several Republican presidential candidates have served up attacks on LGBT people, recommitting themselves to persecution by rolling back gains for equality and enshrining the right to discriminate into law. The comments all seem to be popping up as the candidates have stayed relatively mum on issues like abortion, gun control violence, and Islamophobia, despite recent tragedies spotlighting those issues in the media.

Here are some of the recent anti-LGBT highlights from the Republican primary.

Marco Rubio
In an interview this weekend with David Brody of the Christian Broadcasting Network, Marco Rubio outlined outlined extensive plans for enabling discrimination against LGBT people in the name of religious liberty. As president, Rubio said he would do the following:

  • Rescind President Obama’s executive order protecting the LGBT employees of federal contractors.
  • Only appoint Supreme Court Justices committed to undoing marriage equality and a woman’s right to an abortion.
  • Protect religious organizations that wish to refuse service to same-sex couples.

Rubio seemed to imply that employing and serving LGBT people were themselves sinful actions. “There are many government contractors and small companies who provide services to the government who are faith-based people, and they are being compelled to sin by government in their business conduct,” he said. “That is not something we should be supporting.”

Ted Cruz
Ted Cruz recently sat down with National Organization for Marriage founder Robert George for an interview on EWTN, a Catholic television network. In one segment, Cruz agreed with George that the Supreme Court’s marriage equality decision was “profoundly wrong,” “fundamentally illegitimate,” “lawless,” and “not based on the Constitution.”

Cruz then referenced Justice Anthony Kennedy’s recent comments that a public official that can not follow the decision, like Kim Davis, should resign. During his remarks, Kennedy alluded to the fact that very few judges resigned from the Nazi German government. Thus, Cruz claimed, he was comparing the Supreme Court to Nazis. “This isn’t me calling them the Nazis,” Cruz explained, “this is Justice Kennedy calling the court on which he serves, calling the opinion that he wrote — analogizing that to the Nazi decrees that we must obey. That is an arrogance, it is an elitism, it is being out of touch with our nation.”

In another segment, Cruz fielded a question about accommodations for transgender students in public schools. He condemned such policies as “ridiculous” decisions made by “zealots.” “I don’t want my daughters taking showers with little boys; I don’t want them when they’re in junior high or high school. And it’s absurd. No parents do.”

Cruz pledged to end Common Core and abolish the Department of Education entirely, so there would be no federal agency to enforce Title IX to protect transgender students.

Mike Huckabee
Mike Huckabee also talked to Robert George for an hour late last month and offered his own renditions on many of the same points. Huckabee would “absolutely decline” to enforce the marriage equality decision, because “it’s a matter of saving our republic.” He’d also ensure that he had an attorney general who “would protect in every way the rights of those citizens who joined in disagreeing.”

As such, Huckabee would pass the First Amendment Defense Act (FADA) in his first 100 days. The bill would prohibit the federal government from acting against any organization that discriminates against same-sex couples, creating a widespread license to discriminate. Citing examples of wedding vendors who would refuse to serve same-sex couples or schools that would refuse to recognize their marriages, he pledged the federal government under his leadership would side with them if a state is trying to enforce a nondiscrimination law.

Huckabee also chimed in on transgender school protections, calling it a “ludicrous notion” that someone “can just wake up one day and say, ‘You know, I know I have the biological makeup of a male and I have the gene — I’m genetically male, but I kind of feel feminine today,’ or ‘I’m going to feel feminine for the next year or the rest of my life.’”

He described it as “most baffling” than anyone could thoughtfully “defend the notion that it is normal — that it is perfectly legitimate — for a person just to declare oneself to be a different gender. It borders on laughable, and I know to say it’s laughable would bring great contempt because people would say you’re being insensitive. I’m not being insensitive. I’m exercising just a little bit of common sense.”

Huckabee similarly exercised his little bit of common sense earlier this year when he joked that he wished transgender protections existed when he was a kid, because he would’ve found his “feminine side” so he could “shower with the girls.”

Ben Carson
Over the weekend, Ben Carson said at a town hall event that he misses “Don’t Ask, Don’t Tell,” the policy that discriminated against lesbian, gay, and bisexual people in the military. “Why do you have to go around flaunting your sexuality?” he asked. “It’s not necessary. You don’t need to talk about that. We need to talk about how we eliminate the enemy.”

He also opposed allowing transgender people to serve, worrying that the military is being used as “a laboratory for social experimentation.” “Deal with the transgender thing somewhere else,” he said. Last month, Carson similarly said that trans people don’t deserve “extra rights,” like equal access to safely use the bathroom. The ban on transgender military service will be lifted this spring.

At a recent debate, Carson took umbrage at the notion that he might be described as a “homophobe” for his frequent anti-LGBT comments. When he apologized earlier this year for suggesting that homosexuality is a choice because prison turns people gay, he announced that he wasn’t going to talk about “gay rights” issues anymore.

That hasn’t proven to be the case for him or any of his fellow candidates.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter

The Supreme Court Just Blew A Gaping Hole In The Wall Of Separation Between Church And State

— by IAN MILLHISER

wall hole

CREDIT: SHUTTERSTOCK

Town of Greece v. Galloway is the case that proponents of the separation of church and state have feared ever since Justice Sandra Day O’Connor left the Supreme Court in 2006. It strikes at the heart of the constitutional prohibition on government endorsement of religious doctrine or belief. And it brings religious conservatives within inches of a victory they have sought for more than two decades. For the sort of people who believe America should be a “Christian nation,” today is a today to celebrate.

To explain, Justice O’Connor was the Court’s leading supporter of the view that government may not endorse a particular religious belief or take any action that could convey such a “message of endorsement to the reasonable observer.” This view placed her sharply at odds with the four other conservatives on the Rehnquist Court. Thus, when O’Connor was replaced with the much more conservative Justice Samuel Alito, most Court watchers expected this prohibition on government endorsements of religion to fall in short order. The most surprising thing about the Town of Greece decision isn’t that begins the process of doing so — it is that it took the Roberts Court this long to reach such a decision.

Though Justice Anthony Kennedy’s opinion in Town of Greece does not explicitly eliminate the ban on government endorsements of religion, it strongly suggests that the end of this ban is nigh. As Kennedy explains, this ban derives from a case called County of Allegheny v. ACLU, which “held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establish­ment Clause because it had ‘the effect of endorsing a patently Christian message.’” Four dissenters, according to Kennedy, “disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society.” One of those dissenters was Kennedy.

Town of Greece is a case about legislative prayer — that is, it is about whether lawmaking bodies can open their session with a prayer that is often, if not always, explicitly Christian. On the surface, Kennedy limits his treatment of the ban on government endorsements of religion to the context of legislative prayer, writing that there was no suggestion in a key precedent “that the constitutionality of legislative prayer turns on the neutrality of its content.” That key precedent is a case known as Marsh v. Chambers, which gave legislative prayers special immunity from the Constitution’s ban on establishments of religion.

Given the fact that legislative prayer already enjoyed special constitutional status even before Town of Greece, supporters of a robust separation of church and state are likely to argue that the ban on government endorsements of religion still exists outside of the context of legislative prayer. They are unlikely to succeed, however, in the long run. There may have been four justices who opposed that ban when County of Allegheny was decided. But there are almost certainly five right now.

The later part of Kennedy’s opinion, which is joined only by Chief Justice John Roberts and Justice Alito, focuses on a weaker limit on government efforts to advance religious faith that Kennedy has supported in the past. Twenty-two years ago, Kennedy wrote for the Court that “government may not coerce anyone to support or participate in religion or its exercise.” He reiterates that holding today, but he adds that the legislative prayer at issue in this case does not constitute religious coercion. “The analysis would be different if town board members directed the public to participate in the prayers,” Kennedy writes, or if they “singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Similarly, “[a] practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.”

This final portion of Kennedy’s analysis is joined by just three justices because Justice Antonin Scalia joins an opinion by Justice Clarence Thomas calling for the Court to go even further. To Scalia and Thomas, the only kind of religious coercion banned by the Constitution is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty” (emphasis in original). So unless the government threatens to jail or fine you for failing to pray, lawmakers can more or less do whatever they want. (Indeed, Thomas would go even further than that. In a section of his opinion that Scalia declines to join, Thomas writes that the “Establishment Clause is ‘best understood as a federalism provision.’” This means that Thomas believes that the separation of church and state applies to the federal government only.)

The upshot of today’s opinion is that Kennedy and his fellow conservatives have finally begun a project they were expected to begin the day O’Connor retired. By the time this project finishes, it is unlikely that many limits will remain on overt government endorsements of religious faith.


This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.