Symposium: The wages of guerrilla warfare against abortion

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School; he blogs at Dorf on Law and is the co-author of the book Beating Hearts: Abortion & Animal Rights (2016).

During the oral argument last year in Glossip v. Gross, Justice Samuel Alito accused the lawyers arguing that Oklahoma’s lethal injection protocol was unconstitutional of trying to take advantage of a “guerilla war against the death penalty” by pressuring companies to make tested drugs unavailable and then challenging the untested substitute drugs as too risky. Alito apparently believed that the case against lethal injection was pretextual, that the real target was capital punishment itself. Because neither he nor the other four Justices in the Glossip majority were willing to invalidate the death penalty itself, they were not inclined to take seriously the arguments that the Oklahoma protocol was unconstitutional either.

Something similar happened in Whole Woman’s Health v. Hellerstedt. The challenged provisions of the Texas law known as HB 2 were defended by the state and pro-life activists as promoting the health of women seeking abortions. On their face, that was a just barely plausible claim. The requirement that a doctor performing abortions have admitting privileges at a nearby hospital seems related to health. So does the requirement that abortion clinics satisfy the state’s regulations for ambulatory surgical centers.

But everybody knows that the Texas legislators who enacted HB 2 did so to limit abortion – not because they think abortions pose unacceptable health risks to women but because they think that abortion is immoral. HB 2 and similar legislation in other states that impose onerous restrictions on abortion facilities in the name of women’s health operate as guerilla warfare against abortion itself. Accordingly, Justices who believe that the Constitution protects a right to abortion were understandably inclined to view HB 2 skeptically, just as the Justices who believe that the Constitution permits the death penalty were likely to view the Glossip challenge skeptically.

In comparing Whole Woman’s Health to Glossip, I do not mean to suggest anything like precise equivalence. For one thing, as a recent Radiolab podcast explores, pharmaceutical companies themselves, rather than anti-death penalty lawyers, may be chiefly responsible for the unavailability of the previously used drugs. Moreover, even the old protocols are problematic, sometimes leading to hideously painful botched executions. And even if one thinks that there has been a guerilla war by anti-death penalty lawyers to render relatively safe lethal agents unavailable, that hardly justifies the ultimate decision in Glossip upholding the Oklahoma protocol, because condemned inmates should not be tortured as a means of disciplining anti-death penalty lawyers.

Meanwhile, one does not need to question the motives of the Texas legislature to reach the result that the Court reached in today’s decision. The very first sentence of Justice Stephen Breyer’s majority opinion quotes the plurality opinion in Planned Parenthood v. Casey for the proposition that a law restricting pre-viability abortion is invalid if it has the “purpose or effect” of placing a substantial obstacle in the path of a woman seeking an abortion (emphasis in original). Yet the opinion does not in any way seek to uncover evidence of an illicit subjective motive on the part of the Texas legislature. It doesn’t need to. Despite the superficial connection to health, upon inspection, the challenged provisions of HB 2 bear no actual relation to women’s health.

To show that the Texas law does not promote women’s health, Breyer’s opinion relies heavily on the findings of fact by the district court. The evidence is overwhelming. As a statistical matter, abortion is substantially safer than various other procedures that are not subject to either the admitting-privileges requirement or the surgical-center requirement. Indeed, these requirements are downright perverse.

For example, Breyer explains that doctors whose practice consists chiefly of performing abortions will not be able to meet the admitting-privileges requirement, because hospitals only confer such privileges on doctors who regularly see patients in the hospital. Yet because abortion is so safe, such doctors almost never bring patients to the hospital. The very safety of abortion precludes satisfaction of a requirement that is justified on the ground of protecting women from the supposed risks of abortion.

If the unconstitutionality of HB 2 should be clear even if one does not begin with skepticism of the Texas legislature’s motives, then why wasn’t today’s decision unanimous? Because the dissenting Justices think the Court’s abortion jurisprudence fundamentally misguided. They were thus inclined to view a challenge to any abortion regulation unfavorably.

The dissenting Justices today purported to apply the cases that find and define the abortion right, but they did so uncharitably. For example, Justice Clarence Thomas objected that whereas the Court in Casey had evaluated whether a law imposed an undue burden by looking to its impact on women seeking abortions, today’s majority sought to balance each legal provision’s burden against its supposed health benefits. Such balancing, Thomas said, was ruled out by Casey. But this is a strange objection. Even if Casey can be read to say that a law’s benefits are irrelevant to whether its burdens are due or undue, it certainly should not be read that way. Implicit in the very notion of an “undue burden” test is some comparison of costs and benefits. Only a Justice who is hostile to abortion rights could think otherwise.

Taken together, Glossip and Whole Woman’s Health may hold lessons for both litigators and legislators. In each case, lawyers whose real goal may have been much broader – abolition of the death penalty in one case, overturning Roe v. Wade in the other – made ostensibly narrow arguments within the existing legal framework. They succeeded in signaling to their allies on the bench which side they were on. Thus, in Glossip, Breyer wrote a dissent urging that the constitutionality of the death penalty itself be reconsidered. Likewise, in today’s case, Thomas repeated his view that abortion is not a constitutional right. But in each case, the lawyers failed to persuade Justices on the other side to rule for them on narrow grounds.

That should not be surprising. Justices know where they stand on ideologically fraught issues like the death penalty and abortion. Lawyers should be on notice that Justices cannot be tricked into ruling against their druthers, at least if the law leaves any wiggle room at all.

Meanwhile, legislators who seek to resist a regime of constitutional doctrine should also be put on notice that passing pretextual laws is risky. Even when they do not strike a law down based on the lawmakers’ illicit motives, the Justices will see through such motives.

For years, the pro-choice movement has argued that abortion restrictions are against women’s interests. More recently, pro-life activists and legislators have sought the enactment of restrictive abortion laws while claiming that such laws protect women from abortion. Today’s decision shows the limits of this approach as a legal strategy.

Still, one should not expect the so-called woman-protective rationale for abortion restrictions to disappear, even if laws enacted under this rationale continue to be struck down by courts applying today’s decision. The argument that abortion must be regulated because abortion harms women was never entirely a legal argument. It was also an effort to persuade the public that the anti-abortion movement is not anti-woman. With one vacancy already on the Court and a presidential election featuring a pro-life man against a pro-choice woman, the battle for public opinion about abortion is also, ultimately, a battle for the meaning of the Constitution.