Noticeably absent from the Supreme Court’s line-up of high-profile decisions in recent Terms is the issue of abortion.  Presumably it is just a matter of time.

When the Court decides to tackle a major abortion question and what the Justices ultimately say about the subject should be important to law students in a wide range of courses, from basic constitutional law to advanced civil liberties seminars to gender-based classes.  The status and scope of the right to abortion may hang in the balance.

The Court has confronted plenty of hot-button cases in recent Terms, from affirmative action to the Affordable Care Act to federal treatment of same-sex marriages.  The last time the Justices decided an abortion case on the merits, however, was April 2007, when – by a five-to-four vote – they upheld the federal law restricting late-term or so-called “partial birth” abortions.

In some respects, that 2007 decision in Gonzales v. Carhart was like the cliff-hanging final episode of the season for a television drama.  A brief explanation is in order.  In 1992, the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey, reaffirming the right to abortion from Roe v. Wade and establishing the relevant constitutional question as whether an abortion restriction imposes an “undue burden” on a woman’s right to choose to have an abortion.  An undue burden, the Court said, is any regulation that places a “substantial obstacle” in the path of a woman seeking an abortion.

Since then, the lower federal courts and state courts have wrestled extensively with the question of precisely how to apply the undue burden test.  But the Court has offered relatively sparse guidance.  Since 1992, the make-up of the Court has changed significantly, with six new Justices.  As with so many other important issues, the Court seems deeply divided over the meaning of the right to abortion, and the scope most likely depends on how Justice Anthony Kennedy interprets the standard.  Justice Kennedy supported the adoption of the undue burden test in Casey.  However, eight years later, he dissented when the Court struck down a Nebraska law in 2000 in Stenberg v. Carhart. In that case, the majority found, by a vote of five to four, that the state law restricting late-term abortions was an undue burden.  Kennedy disagreed, and in 2007 he wrote for the majority in Gonzales v. Carhart upholding the federal law restricting late-term abortions on the ground that it did not impose an undue burden.

For nearly six years, Justice Kennedy and his colleagues have left us hanging. Has the meaning of “undue burden” changed? Is the Court prepared to scrap the undue burden standard and put something else in its place? Or is the right to abortion itself in doubt?

First in line to try to force answers to these questions is a litany of state legislatures, where a majority of lawmakers would like to restrict the availability of abortions or even outlaw abortion altogether. The state legislatures in recent sessions have provided a plentiful supply of laws testing the limits of the right to abortion and the meaning of the undue burden standard.

That brings us back to the question with which we started. Is it just a matter of time before the Court undertakes a major new review of the right to abortion? The answer is that this seems likely although not certain.

There are a number of new state abortion laws in various stages of legal challenge and seemingly headed for the Court. In summary, the laws involve: requiring doctors who perform abortions to have local hospital privileges; prohibiting abortions after twenty weeks, ostensibly to prevent fetal pain; prohibiting the use of drugs to induce “medical” rather than surgical abortions; and requiring an ultrasound before a woman can have an abortion.

The Court indicated a strong interest in regulation of medical abortions last June when it agreed to hear Oklahoma’s appeal defending a 2011 law that restricted “medical abortions” – the use of drugs to induce abortion, rather than removing the fetus surgically.  Medical abortions are generally only performed in the early stages of pregnancy, up to about nine weeks. The Oklahoma Supreme Court found the state law unconstitutional, but the Court asked the state court to clarify the scope of the law. When the state court responded last October that the law was effectively a ban on medical abortions, the Court dismissed the case without any written opinion, leaving in place the Oklahoma court’s invalidation of the unconstitutionally broad ban on medical abortions.

Next up in early November, the Court chose not to review another Oklahoma law which required that women be shown an ultrasound image of the fetus before having an abortion. That law was also struck down by the state supreme court, and the Justices let the ruling stand without comment.

In the third recent development, the Justices allowed a Texas law requiring doctors who perform abortions in Texas to have privileges to practice at nearby hospitals to remain in effect. A federal district court held that the law was unconstitutional, but the U.S. Court of Appeals for the Fifth Circuit permitted the law to take effect while it considers the state’s appeal.  Opponents argue that the law will force one-third of the abortion clinics in the state to close, hitting rural areas especially hard, but the Court declined to step in to delay the effect of the law.

The Justices were split five to four; three in the majority – Justices Antonin Scalia, Clarence Thomas and Samuel Alito – defended their action and criticized the arguments made in a dissent by Justice Stephen Breyer that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.  In those Justices’ view, not only does the Fifth Circuit’s action disrupt the status quo, but it is also quite likely that four Justices will want to grant review of the case when a petition is filed after the Fifth Circuit rules on the law’s constitutionality. Justice Scalia disputed these claims, countering that the dissenters had failed to make a concrete showing that the law might be unconstitutional.  It will be some months before the Texas law comes back to the Court as a petition for certiorari, but come back it will.

Well before the Court returns to the Texas law, however, the Justices are scheduled to consider, possibly as early as Friday, whether to hear a challenge to an Arizona law that prohibits abortions after twenty weeks of pregnancy except in cases of medical emergency.  Defending the law, the state argues that there is medical evidence to show that the fetus feels pain by twenty weeks.  Opponents say the evidence of fetal pain is not medically established.

The U.S. Court of Appeals for the Ninth Circuit invalidated the law because it bans most abortions before the likely point of fetal viability – that is, the moment at which the fetus might be able to survive on its own, generally considered to be about twenty-four weeks.  Casey, the Ninth Circuit explained, does not permit a state to ban abortions before viability.  The Court could announce as soon as this week whether it will hear the case, Horne v. Isaacson. Other states have adopted twenty-week abortion bans, too, so the issue is of some importance in determining the scope of permissible state abortion regulation.

It is possible, of course, that the Court will pass up the Arizona case and even the Texas case when it is appealed.  A Court so closely divided on abortion questions may be in no hurry to decide them.  But with legislatures in many states determined to test the contours of the right to abortion and to push the limits of abortion regulation, it does seem like it is only a matter of time before the Court confronts another major milestone in the fight over abortion. In the parlance of those season-ending cliffhangers, stay tuned.

Posted in Cases in the Pipeline, Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Abortion’s time is coming, SCOTUSblog (Jan. 6, 2014, 9:26 AM), http://www.scotusblog.com/2014/01/scotus-for-law-students-sponsored-by-bloomberg-law-abortions-time-is-coming/