ROE V. A TECHNICALITY: HOW PROCEDURAL DECISIONS WILL BRING ABOUT THE END TO CONSTITUTIONALLY PROTECTED ABORTION RIGHTS

By: Leah Reiss, Volume 106 Staff Member

For forty-eight years now, the Supreme Court has recognized that the Constitution protects “a woman’s[1] right to terminate her pregnancy before viability.”[2] Though subsequent decisions have narrowed that right, it still exists to this day.[3] Most Americans believe abortion should be legal in all or most pregnancies, and that has been true for decades, but the right to access an abortion remains under constant threat.[4] The recent appointments of three solidly anti-abortion justices to the Court, sitting alongside longer-tenured members who are also openly hostile towards abortion, places that right under even more jeopardy.[5] This is especially true when taken with the fact that the Court has agreed to hear arguments in several abortion-related cases this term. Looking at the upcoming cases, the court seems poised to continue to undermine legalized abortion. But it is not likely we will see a landmark case creating bold new precedent, in the mold of a full reversal of Roe v. Wade. Instead, the Court will likely chip away at the right using more subtle tools—procedural details and technicalities, seemingly divorced from the substance of the particular cases on the docket.

I. THE CASE: CAMERON V. EMW WOMEN’S SURGICAL CENTER

On October 12 of this year, the Court heard arguments in Cameron v. EMW Women’s Surgical Center.[6] With this case, Kentucky’s Attorney General (AG), Daniel Cameron, is attempting to intervene to defend a harsh abortion bill, even though his predecessor declined to enforce the law and it is beyond the typical timeline for this kind of intervention.[7] The Kentucky law at hand bans a particular medical procedure commonly used to perform abortions during the second trimester of a pregnancy.[8] The law was challenged as patently unconstitutional, and the district court agreed, permanently blocking enforcement of the law in its decision.[9] Of note, the prior attorney general signed a stipulation agreeing to be bound by the district court’s ruling, whatever the judgment may be.[10] Kentucky appealed the decision to the Sixth Circuit, which upheld the district court’s injunction, and the Kentucky official defending the law declined to seek further review.[11] AG Cameron filed a motion to intervene with the Sixth Circuit, and the panel turned down his request, citing the length of time the case had already been going on for.[12] AG Cameron appealed this denial to the Supreme Court in October of last year.[13]

II. WHY DOES CAMERON MATTER?

Cameron may seem like a purely procedural case, and in some ways it is, but there’s more to the story. AG Cameron didn’t just attempt to intervene in the case; he sought a simultaneous review of the decision to block the law itself, which the Court denied.[14] Is this refusal to reconsider the injunction a win for abortion providers? It is in the short term, because people wishing to terminate their pregnancies in Kentucky are still able to access appropriate medical procedures (at least in theory—other access issues persist[15]). But in the long term, what will likely happen is that the Court will allow AG Cameron to intervene, setting the stage for a full reconsideration of a cruel and patently unconstitutional bill that has already been struck down twice.[16]

This is the kind of decision that, if it proceeds as predicted, will seem neutral on its face. It may seem completely rational for the Court to decide that a state’s legislative action deserves a legitimate judicial defense of that action when challenged in court, and the attorney general is the natural person to take on that defense. And this is exactly the posture AG Cameron has taken in this case.[17] But this easy logic belies the hidden nefariousness of the predicted decision.

The case for allowing AG Cameron’s intervention is not so simple as its proponents would insist. As mentioned earlier, AG Cameron isn’t merely attempting to intervene as a new party to the case. He is attempting to override a stipulation his predecessor signed that binds him as well as the inheritor of that office as a condition of procuring dismissal from the case (the attorney general was one of the named defendants in the original action).[18] Finding that a state has the right to defend a law doesn’t necessitate that the defender must be the attorney general, especially after the attorney general was voluntarily dismissed from the case.

III. WHAT CAMERON SAYS ABOUT THE FUTURE OF ABORTION ACCESS

Cameron isn’t the only case in which we are seeing procedural concerns take precedent over substantive ones in the Court’s deliberation. Because abortion inspires strong, emotional responses in many people who approach the topic from multiple perspectives, it may be the case that the Court sees these kinds of procedural challenges as preferable to ones that would require a more head-on accounting to adequately deal with the merits. The Court’s action in Whole Woman’s Health v. Jackson so far has rested on procedural grounds—allowing the state of Texas to abrogate the constitutional rights of countless people while the Court facetiously grapples with a drafting choice transparently chosen to prompt the Court to do exactly this.[19]

So, what we end up seeing when the Court uses procedural grounds for the benefit of those who seek an end to legal abortion is a revocation of rights on both broad and personal levels. It is all too clear that we are heading towards a state in which federal abortion protections are all but null, and a pregnant person’s ability to obtain an abortion will depend primarily on their financial means, and secondarily on where they live.[20]

But even if that federal protection is left hanging on by a thread, the fact is, for any person who wanted to terminate their pregnancy and was not able to due to statutory efforts to ban the procedure entirely, that protection is meaningless; one of their fundamental rights was already taken away from them. And, though policies, statutes, and judicial decisions can be reversed, this violation of rights is one thing that cannot be.

 

[1] This author recognizes that some people who are not women may also become pregnant. The vast majority of the literature on this subject uses gendered language (e.g., “woman,” “mother,” etc.) to describe people capable of becoming pregnant and seeking abortions. Accordingly, this Post will include that language in quotations, especially when quoting judicial decisions, but will use gender-inclusive language in non-quoted text.

[2] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2135 (2020) (quoting Planned Parenthood v. Casey, 505 U.S. 833, 871 (1992) (affirming Roe v. Wade’s central holding that abortion is a constitutionally protected right)).

[3] See, e.g., Planned Parenthood v. Casey, 505 U.S. at 874 (“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”); Maher v. Roe, 432 U.S. 464, 473–74 (1977) (“Roe did not declare an unqualified constitutional right to an abortion …. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.”) (internal quotations omitted).

[4] Hannah Hartic, About Six-in-Ten Americans say Abortion Should Be Legal in All or Most Cases, Pew Rsrch. Center(May 6, 2021), https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases [https://perma.cc/9MMW-TUR7].

[5] Elaine Kamarck, What if the Supreme Court Reverses Roe v. Wade?, Brookings (Oct. 5, 2021), https://www.brookings.edu/blog/fixgov/2021/10/05/what-if-the-supreme-court-reverses-roe-v-wade [https://perma.cc/QGB7-YVCB].

[6] Cameron v. EMW Women’s Surgical Center, Oyez, https://www.oyez.org/cases/2021/20-601 [https://perma.cc/Y87D-LT59].

[7] Id.

[8] Amy Howe, Justices to Decide Whether Kentucky Attorney General Can Defend Abortion Law, SCOTUSblog (Mar. 29, 2021), https://www.scotusblog.com/2021/03/justices-to-decide-whether-kentucky-attorney-general-can-defend-abortion-law [https://perma.cc/X4L3-869E]. The second trimester starts at about 13 or 14 weeks into a pregnancy, while constitutional protections prohibit undue burdens placed on abortions up until fetal viability, typically understood as anywhere from 22 to 24 weeks.

[9] Id.

[10] Amy Howe, Justices to Weigh Kentucky Attorney General’s Effort to Intervene in Abortion, SCOTUSblog (Oct. 10, 2021), https://www.scotusblog.com/2021/10/justices-to-weigh-kentucky-attorney-generals-effort-to-intervene-in-abortion-battle [https://perma.cc/3ZH7-D2UE].

[11] Howe, supra note 8.

[12] Id.

[13] Id.

[14] Id.

[15] State Facts About Abortion: Kentucky, Guttmacher Inst., https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-kentucky [https://perma.cc/EFP9-BQ5D].

[16] Cameron v. EMW Women’s Surgical Center, ACLU (Oct. 6, 2021), https://www.aclu.org/cases/cameron-v-emw-womens-surgical-center [https://perma.cc/H2PN-YCMV].

[17] Brief for Petitioner at 7–11, Cameron v. EMW Women’s Surgical Ctr., No. 20-601 (2021).

[18] Id. at 7–10.

[19] Amy Howe, Court Won’t Block Texas Abortion Ban but Fast-Tracks Cases for Argument on Nov. 1, SCOTUSblog(Oct. 22, 2021), https://www.scotusblog.com/2021/10/court-wont-block-texas-abortion-ban-but-fast-tracks-cases-for-argument-on-nov-1 [https://perma.cc/Z4U6-9RYK].

[20] This is certainly already the case for many people, but geographic and economic disparities in abortion access will continue to increase. Elizabeth Nash, State Abortion Policy Landscape: From Hostile to Supportive, Guttmacher Inst.(Dec. 30, 2020), https://www.guttmacher.org/article/2019/08/state-abortion-policy-landscape-hostile-supportive [https://perma.cc/M8FN-2CG2].