The highest court in the land is playing one man down and every American woman should be calling a foul.

As we’ve already seen several times this term, a closely-divided eight-member Supreme Court means the possibility of 4-4 deadlocks and the inability to resolve legal questions of immense national importance. A Court unable to do its job has profound implications for a variety of vital issues, particularly those, like abortion, that are politically contentious and over which lower courts around the country often disagree.

The Supreme Court has been central to defining the scope of reproductive rights since 1973, when it first established a woman’s constitutional right to abortion. And continued backlash against that decision ensures that the federal courts will face more crucial questions on reproductive justice in years to come. With Roe the law of the land, anti-choice state legislatures are getting increasingly creative in their attempts to restrict and diminish the right to abortion. As anti-choice laws in various forms gain political traction, it will be up to the courts—and ultimately, the Supreme Court—to ensure that women’s constitutional rights are protected.

Currently, the Supreme Court is considering the constitutionality of Texas’ TRAP law HB2 – a sham designed to reduce clinics and doctors able to provide abortion under the guise of woman’s health and safety – because of an existing circuit split. The Fifth Circuit ruled HB2 constitutional while the Seventh and Eighth Circuits struck down similar laws. We expect the Court to hand down a decision – or indecision – Monday.

But while TRAP laws are the fight of today, the Court is almost certain to see more fights in the future:

  • TRAP laws can make it challenging logistically and economically for women to access clinics. One work around is the advent of telemedicine, which enables doctors to diagnose and treat patients remotely. But as woman and doctors innovate to deal with shuttered clinics, abortion foes have been quick with their own response: Currently, ten states ban telemedicine, and similar laws in four in other states have been proposed.
  • Although obtaining an abortion before viability is an adult woman’s constitutional right, around the country there are one current, eleven proposed, and two enjoined laws banning abortion if a physician detects a fetal heartbeat. A fetal heartbeat can sometimes be detected as early as six-weeks, often before a woman realizes she is pregnant.
  • There are three current, one signed (but not yet in effect), and eleven proposed laws criminalizing mothers for substance abuse while pregnant. Even women who seek drug-treatment during pregnancy risk incarceration if their child is born addicted to or harmed by narcotic drug use. Criminalizing rather than rehabilitating these women takes parents away from their children and misunderstands the disease of addiction.
  • Some states force doctors to perform a medically unnecessary ultrasound on women seeking an abortion. Requiring this extraneous procedure is a thinly veiled attempt to make access more burdensome and intimidating. In 2012, the Fifth Circuit upheld a Texas law requiring women seeking an abortion to undergo a forced ultrasound, view the sonogram image, and listen to the fetal heartbeat. In 2014, the Fourth Circuit struck down a similar North Carolina law as unconstitutional.
  • The Supreme Court has long held that parental consent cannot be the only means by which a minor can access an abortion, and in certain circumstances states must provide for a “judicial bypass” of parental consent. But states have narrowed judicial bypass and imposed other restrictions that render abortion access for minors nearly impossible. There are thirteen current, two enjoined, one signed, and twenty-eight proposed laws aimed at deterring and preventing minors from accessing abortion. Many young girls are victims of sexual and physical abuse at the hands of their parents. For these girls, restrictive parental consent laws often leave them no choice but to seek self-induced abortion or leave home.[1]

Without clear precedent on questions of women’s health, America will become a patchwork of reproductive rights, where access to abortion will turn on questions of geography and socioeconomic status. In a populous urban-center in New York, a woman of means is able to obtain the healthcare she needs with few obstacles; in rural Texas, on the other hand, a woman may have to schedule an appointment months in advance, travel hundreds of miles, and endure a paternalistic waiting period to receive family planning services.[2] Women in rural areas without the resources to travel are simply denied access entirely.

One function of the Supreme Court is to ensure there is a single law of the land. If the Supreme Court is evenly divided, it can’t do its job. If it can’t do its job, our reproductive freedoms hang in the disorganized balance between disparate district court and circuit court rulings. This uncertain judicial landscape affects all women, but disproportionately affects immigrant and minority women from low-income communities, many of whom are minors.[3]

With the right-wing’s continued commitment to an anti-choice agenda, we can expect the Court to hear more questions on women’s health in the future. The discussion surrounding a full Supreme Court is not an academic exercise in theories of constitutional law – for the sake of our constitutional freedoms and a properly functioning judiciary, we need a ninth justice.

 


[1] Jane’s Due Process, http://janesdueprocess.org/about-jdp/ (last visited jun. 23, 2016).

[2] An Overview of Abortion Laws, https://www.guttmacher.org/state-policy/explore/overview-abortion-laws (last visited Jun. 17, 2016).

[3] Rachel B. Gold & Elizabeth Nash, TRAP Laws Gain Political Traction While Abortion Clinics – And the Women They Serve – Pay the Price, 16 Guttmacher Policy Review 1, 16 (2013), https://www.guttmacher.org/sites/default/files/pdfs/pubs/gpr/17/2/gpr170214.pdf.