Louise Melling is the Deputy Legal Director at the ACLU.
To date, there has been surprisingly little buzz about the Court’s grant of certiorari in Cline v. Oklahoma Coalition for Reproductive Justice. That is likely because it is not a case where the fate of abortion is understood to be on the line. At issue in the case is the constitutionality of an Oklahoma statute that either severely restricts or entirely bans early abortions accomplished through the use of medication as opposed to surgical procedures. (The Supreme Court has certified questions to the Oklahoma Supreme Court to clarify whether the law in fact bans medication abortion outright or whether it instead puts strict restrictions on its use that will force doctors to use an outdated medical regimen that will, among other things, triple the price of the procedure.)
But no one should be fooled. In the Court, as in the state legislatures, it is the incremental cuts, not bans, that in reality define the fate of abortion restrictions and thus abortion. Here the question, “Can a state ban a method or methods of abortion,” will be the proxy for the much more significant question, “In which direction will the Court take its decision in Planned Parenthood v. Casey?”
The Casey decision was a love-hate one. It reaffirmed, in a time of tumult and anxiety, the core holding of Roe v. Wade. It gives eloquent voice to the importance of abortion to women’s lives — speaking poignantly of abortion as facilitating the “ability of women to participate equally in the economic and social life of the nation” and as “central to the liberty protected by the Fourteenth Amendment.” It also asserted the impropriety of the state “insist[ing] . . . upon its own vision of the woman’s role [as mother], however dominant that vision has been in the course of our history and culture.”
At the same time, the Court diminished protection for the right, replacing strict scrutiny with the “undue burden” standard: An abortion restriction is unconstitutional if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Or it operates as a substantial obstacle “in a large fraction of the cases” in which is relevant. The Court went further, to say that the state could use its power to “persuade the woman to choose childbirth over abortion.” Measures such as waiting periods previously held unconstitutional became permissible.
The question is whether the Court will use the Cline case to give meaning to the liberty interest side of Casey, or will it further erode our rights, drawing on the other side of Casey, in ways subtle and devastating? Those of us who work in this field have our concerns. After all, the Court took on a case presented under the state constitution. It granted certiorari in a case where the scope of the statute is unclear. And it chose to hear a case where the trial court reasoned that the state law’s mandate “is so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.” We can’t help but worry that the Court will do harm. But imagine that it would do otherwise. Imagine that it would, as it did in United States v. Windsor, give teeth to its notion of a liberty interest, and the right it espoused in Casey. What would it do then?
First, it would reaffirm, as the Oklahoma courts understood, that for abortion as in for other rights, the state must at a minimum assert a legitimate state interest to justify its restriction and indeed show that the restriction serves that interest. That sounds like a basic proposition, but in the world of abortion jurisprudence, nothing is basic. The Court in Casey spoke of state interest, but obliquely. It said little more than to note that “a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” It was more explicit in Gonzales v. Carhart, where the Court expressly analyzed whether the statute furthered a legitimate state interest before assessing whether it imposed “an unconstitutional burden.”
Indeed, given the Court’s reasoning in Gonzales, there should be no question as to the need for a legitimate state interest, but there is. Even the Oklahoma Supreme Court framed its discussion of state interest in terms of the purpose prong of Casey. That’s all fine, if purpose to obstruct abortion within the meaning of Casey is understood to mean no more than the absence of a legitimate state interest, and not to require, as the Court once suggested in Mazurek v. Armstrong, some proof of a nefarious intent (with even that insufficient to hold a restriction unconstitutional). A purpose of improper legislative motive is a standard all but impossible to satisfy, and rightly not the measure of state interest where other constitutional rights are concerned.
And other courts, such as the Sixth Circuit in Planned Parenthood Southwest Ohio Region v. DeWine, have gone so far as to uphold a state restriction on abortion without ever even analyzing whether there was a state interest in play. The court in that case asked only if, in the face of the restriction, a majority of women could still access abortion. But that can’t be right. Otherwise, a state could impose a one-hundred-dollar tax on abortion – seeking to discourage abortion as the state discourages smoking – and it would all be fine as long as most women could still access an abortion. That standard – anything goes as long as most women can get an abortion – in essence reduces the protection of abortion, within the ambit of its constitutional status, to less than rational basis scrutiny, where a restriction must at least be rationally related to a legitimate state interest. Thus, if the Court insists on hearing this case, it can reaffirm what it and the Oklahoma courts have held: The state needs a legitimate state interest, one furthered by the restriction, if the measure is to be upheld.
Making clear the need to demand, and assess, the state interest will be one way to give much needed teeth to the undue burden standard. Today, it is a standard that permits the courts wide latitude to uphold restrictions on abortions. They need only conclude that the majority of women can somehow still get an abortion. That’s the crude way the test has sometimes been applied. It doesn’t matter what hurdles women face, how high we must jump, how much more we must pay, how shamed we are. All that matters is, can we still get an abortion?
The facts of the case at hand illustrate the point well. The majority of the abortions at the plaintiff clinic are by medication abortion, and an increasing number of early abortions throughout the nation are performed using medication rather than surgery. So is it enough to say, such a ban is fine, provided women can still get surgical abortions? Or can the state limit the drug protocol to one now viewed as outdated within the medical establishment so long as women can get abortions another way? The courts in Oklahoma understood that can’t be the standard – there has to be a reason, and a good one, for these restrictions. That is surely the case, at least if the Supreme Court means what it said in Casey.
There is no honest way to reverse the Oklahoma courts, at least not if you really believe abortion is constitutionally protected and is indeed critical to women’s liberty and equality.