Balkinization: Faulty Federalism, Texas Edition: How Texas Hopes to Gut the Right to Abortion

Faulty Federalism, Texas Edition: How Texas Hopes to Gut the Right to Abortion

David Gans

Last year, defenders of discriminatory marriage laws urged the Supreme Court to defer to the judgment of state legislatures that had denied marriage equality to same-sex couples. This year, defenders of restrictive anti-abortion laws designed to shutter abortion clinics are making the same argument, insisting that courts have no warrant to decide whether a state’s abortion law actually serves health-related purposes. This argument works no better a second time around. When the Supreme Court hands down its ruling in this Term’s blockbuster abortion case, the Justices should make clear that courts should not rubberstamp laws that deny women liberty, equality, and dignity.

At issue in the case of Whole Woman’s Health v. Hellerstedt, which will be heard by the Justices this week, is a pair of onerous abortion regulations adopted by the state of Texas, requiring physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic and requiring abortion clinics to meet the standards for standalone surgical centers. Texas defends these laws, which would force more than 75% of the state’s abortion clinics to close, insisting that the Supreme Court must defer to the legislature’s view of what is necessary to protect women’s health. According to Texas, courts should not referee disputes about whether state regulation serves a medical basis. Any other result, Texas claims, would violate principles of federalism and turn the Supreme Court into a medical board for the nation. Texas is wrong—judicial opt out is just not how the Constitution works.

There is no more basic principle of constitutional law than the duty of the courts to carefully review challenged legislation to ensure its consistency with the Constitution. When the Constitution was written more than two centuries ago, its Framers made the courts the frontline against state violations of the Constitution’s guarantees. The need for careful judicial scrutiny is reflected in many Supreme Court decisions that limit the power of state majorities to violate fundamental constitutional guarantees. Decisions vindicating rights ranging from freedom of expression, to freedom from unreasonable searches and seizures, to protection of personal liberty and equality under law all reflect that courts must engage in searching review to ensure that states do not subvert constitutional rights.

To ensure the full scope of liberty protected by the Constitution, courts must pay close attention to the state needs asserted to justify a deprivation of liberty. That’s particularly important here. History shows that states often denied women equal citizenship through legislation that purported to protect their health and welfare, but in fact denied them equal liberty, dignity, and autonomy. Texas’s effort now to make it virtually impossible for women to exercise their constitutionally guaranteed right to choose abortion—like long-outmoded laws that denied women the right to work on the same terms as men—cannot be squared with our Constitution’s promise of liberty, dignity, and equality for all.

Texas’s view of the law would allow states to do an end-run around the Constitution, letting them manipulate constitutional rights out of existence. Of course, that’s exactly what Texas wants. The very point of its restrictive abortion laws—which single out abortion providers for special regulations that are not applicable to other medical procedures—is to make abortions practically unavailable in the state. Rather than asking the Court to overrule the long line of cases protecting a woman’s right to choose, Texas would subject the abortion right to a death by 1,000 cuts, eliminating the “real substance” of liberty that the Court’s decisions guarantee to women.

If the state’s argument that the Justices should defer to political process sounds familiar, it should. In last year’s landmark marriage equality case, states insisted that it was up to the people of the states, acting through the democratic process, to decide whether loving, committed same-sex couples had the right to marry. Invoking principles of federalism, the states argued—as Texas does now—that the Supreme Court should defer to their judgment. The Court flatly rejected that argument. As Justice Anthony Kennedy’s opinion made clear, constitutional rights are not subject to a vote. When majorities in the legislature deny to any group of people the full scope of liberty guaranteed by the Constitution, courts have a constitutional obligation to strike down the acts of the legislature.

Justice Kennedy’s opinion declaring that marriage equality is the law of the land—a case that Texas does not even mention in its brief—should loom large when the Justices meet to consider Texas’s effort to close abortion clinics throughout the state. To strike down the Texas law, all Justice Kennedy has to do is to repeat what he’s already written.

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.

Posted 11:51 AM by David Gans [link]