Abortion Procedures

The United States Supreme Court from afar.The Supreme Court’s decision last week in Whole Woman’s Health v. Hellerstedt was, at first glance, about what you might expect. In striking down Texas’s admitting privileges and surgical-center requirements for abortion provider facilities as placing an “undue burden” on the constitutional right to abortion, the majority opinion tacked closely to the principles of Roe v. Wade and the prevailing legal standard of Planned Parenthood of Southeastern Pennsylvania v. Casey. Those cases held that a woman has a general constitutional right to a pre-viability abortion, subject to reasonable regulation by the states that does not place a “substantial obstacle” in the way of her exercising that right. The Hellerstedt majority’s major innovation was the unremarkable conclusion that Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer…the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The lineup, too, was relatively unsurprising. Justice Stephen Breyer wrote the majority opinion, joined by four justices who had voted to protect abortion rights in the past, and the three dissenters were justices who previously endorsed abortion restrictions. True, Justice Anthony Kennedy’s conclusion was somewhat in doubt and ultimately determinative—he has previously voted on either side depending on the abortion regulation at issue. But given the truly drastic effect of the laws at issue on the availability of abortion providers in Texas and other states, it was hard to square Kennedy’s prior support for the undue burden standard with a nod in their favor.

Upon closer review, however, there was something rather striking about the written opinions in Hellerstedt. The principal dissent in the case, authored by Justice Samuel Alito and joined by Chief Justice John Roberts and Justice Clarence Thomas, focused almost exclusively on a technical procedural issue far more familiar to first-year law students than abortion litigants. Yes, Justice Thomas wrote a stinging dissent echoing decades of opinions that he and the now-deceased Justices Antonin Scalia and William Rehnquist have penned, excoriating the very notion that abortion rights are protected by the constitution’s due process clause. Yet the Thomas opinion was not joined by his colleagues; his two co-dissenters chose to rely solely on Justice Alito’s dissent. And that opinion refused to delve very far into abortion regulations at all. “Instead,” Justice Alito wrote in his opinion’s second sentence, “the dispositive issue here concerns a workaday question that can arise in any case no matter the subject, namely, whether the present case is barred by res judicata.”

Res judicata is the legal doctrine which essentially prevents litigants from taking two bites at the legal apple. Once a party has litigated a claim or issue, or chosen not to litigate a claim alongside another one logically connected to it, a court’s judgment on that claim or issue is final. They cannot sue again and hope for a better result. One of the threshold issues in Hellerstedt was whether this doctrine precluded the law’s challengers from bringing their lawsuit in the first place. After the law was passed in 2013, a number of Texas abortion providers brought an initial suit against the admitting privileges portion of the law, contending that it was unconstitutional per se. This “facial” challenge was rejected at the district and appeals court levels, and the challengers chose not to petition the Supreme Court for review. Shortly thereafter, another group of abortion providers, a group that included many of the same plaintiffs that brought the first suit, challenged the constitutionality of both the admitting privileges and surgical center provisions of the law as applied to the closure of two specific healthcare facilities in Texas. Justice Alito argued that this first suit was a final judgment on the merits on the claim against the admitting privileges provision which prevented its relitigation. He further concluded that the plaintiffs were also precluded from challenging the surgical center requirement because it was a claim that should have been brought in the first suit. In response, Justice Breyer’s opinion invoked precedent holding that “changed circumstances” can make two otherwise identical claims very different, especially in the context of constitutional rights. The disagreement is an interesting one, though many legal experts believe the majority has the better of the argument (in large part because unlike the first lawsuit, the second case occurred after the law went into effect, thus drawing on new evidence about the law’s burdensome effect and thereby changing the nature of the as-applied constitutional claim).

On its own, there is nothing terribly distinctive about a constitutional rights case becoming bogged down in procedural minutiae. Many cases litigating meaty substantive issues are often resolved on narrow, procedural grounds. What was striking about the principal dissent, however, was that res judicata was the main thrust and primary source of outrage contained in its text. The main dissent did not bother to present a full-throated defense of targeted abortion regulations or more broadly dismiss the very foundation of Roe. In its stead was page after page dissecting the Second Restatement of Judgments. Dissenters often assess alternative grounds unnecessary to their conclusion because it was central to the majority’s holding. So, Alito was fully capable of arguing fulsomely both that res judicata barred the challengers’ suit and that the regulations were substantively valid. But he chose not to.

*            *            *

This tactical choice is reminiscent of the conservatives’ recent approach to another hot-button social issue. Recent conservative gay rights opinions have also moved towards procedural justifications for opposing constitutional protections for gays and away from hostile rhetoric against their core constitutional claims.

It was not so long ago that the Supreme Court upheld the right of states to make homosexual conduct a criminal act. Indeed, even as the tide began to turn in favor of protections for gays, Justice Scalia was writing for a three justice dissent in 1996: “I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct.” The logic was unassailable and the message clear: societal moral disapproval of homosexual conduct reflected in public laws was permissible and defensible. “Coloradans are, as I say, entitled to be hostile toward homosexual conduct,” wrote Scalia. Seven years later, it was Scalia dissenting again for an angry three-justice minority against the Supreme Court’s decision to disallow bans on homosexual sodomy. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” Scalia wrote defiantly. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

That was 2003. By 2013, with the constitutionality of the Defense of Marriage Act at stake, the principal dissent took on a markedly different tone. Yes, Justice Scalia’s opinion was still acerbic, but his primary focus was on the procedural question of Article III standing and the substantive justification that DOMA promoted uniformity of federal marriage laws. Notably absent were the justifications of discriminatory treatment towards gay citizens. Then, two years later, the four conservatives angrily dissented from the Supreme Court’s recognition of a constitutional right to marriage between two persons of the same sex. Their ostensible outrage, however, was at the erosion of the democratic process. The thrust of Roberts’s primary dissent was that the issue was best “reached through democratic means.” Even the furious Scalia seemingly felt compelled to begin his dissent by stating: “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes,” before framing the decision instead as a threat to “American democracy.” To be sure, not all of the dissenters confined themselves to process and procedure. Justice Alito gave a glum eulogy for the American family. But the primary lament was on the usurpation of the political process, not on the advancement of gay rights itself.

This changing form of conservative opposition to gay rights seems quite clearly linked to the growing social acceptance of homosexuality. Is that also what’s going on in Alito’s Hellerstedt dissent? It’s too early to tell. The change in focus might merely reflect the sheer breadth of Texas’s abortion restrictions, their profound effect on the ability of abortion providers to operate, and the evisceration of Casey a contrary decision would entail. Yet, in case after case determining the proper constitutional protection for gay citizens, conservative justices delivered sharp defenses of the conservative “culture wars” position. And then they didn’t. Now, in a space where past justices made biting comments about the rise of “abortion on demand,” Alito has treated us to forty-three pages on third-party standing, severability clauses, and res judicata. His parting words cautioned the Court to “take special care to apply settled procedural rules in a neutral manner.” It’s a striking shift for a court that in its most recent abortion decision just nine years ago, upheld an abortion regulation in part on reasoning deeply skeptical of the procedure itself: “It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” the Court concluded. “Severe depression and loss of esteem can follow.”

So it seems reasonable to ask whether we might be seeing the same process at work in Hellerstedt for abortion rights that took place over the last two decades of same-sex rights jurisprudence. But if the answer is yes, what of it? The conservative bloc’s changing rhetoric has not translated into changing votes. The fights have been just as tough, the recriminations equally bitter. And yet, the Court has always had a careful eye toward public opinion. Major changes in the Court’s legal pronouncements often reflect profound changes in society. Perhaps the Court’s new tone echoes the growing confidence of women to personally identify with reproductive rights, much as the rapid public emergence of gays as employees, neighbors, and family members changed it on same sex marriage. Remember, targeted health regulations on abortion were designed specifically to appeal to conservative-leaning justices’ framing of the holding in Casey. If that appeal is no longer enticing to supposed allies, lower courts will understand and follow. More broadly, perhaps the dissenting opinion is an acknowledgment that the tide is turning on public opinion and the battle must be fought on different ground.


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