A deeper look at NRLC’s brief in Whole Woman’s Health v. Cole

By Dave Andrusko

Editor’s note. The Supreme Court will hear oral arguments March 2 in the lawsuit against portions of Texas’s omnibus 2013 pro-life law, HB2. We will be running posts on the challenge, as we have been, each day until then.

touchingheartsreIn that vein, I’d like to repost a story about National Right to Life’s “friend of the court” brief, filed by National Right to Life’s Counsel James Bopp, Jr. It is a terrific primer that helps the reader understand the key issues in the case of Whole Woman’s Health v. Cole.

Mr. Bopp has argued many cases not only before the U.S. Supreme Court but state supreme courts as well. His 36-page brief directs the High Court back to prior decisions with the inevitable conclusion that the justices should uphold provisions of Texas’s HB2 currently under challenge.

Parenthetically, HB 2 is best known outside the state for the filibuster that temporarily derailed the law. Pro-abortion state Senator Wendy Davis (D) catapulted her role in that filibuster to national fame, which tempted her to run what proved to be a disastrous campaign for governor in 2014.

At issue are two provisions: (1) that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs); and (2) that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies. The latter has already gone into effect. The linchpin of the attack on the provisions is that they place an “undue burden” on a woman’s right to abortion, a reference to language in the 1992 Casey decision.

The summary captures the nub of the case for upholding those portions of HB2 challenged by a coalition of abortion providers, who are represented by the Center for Reproductive Rights. (Internal citations are omitted for clarity.)

After Roe v. Wade, (1973), this Court slid into a period of extreme hostility to regulation of abortion as a medical procedure, from which it began recovery in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The Court did so by returning to an undue-burden analysis along lines advocated by Justice O’Connor in Akron v. Akron Center for Reproductive Health, (1983) (O’Connor, J., dissenting, joined by White & Rehnquist, JJ.). Petitioners seek to return this Court to what it rejected in Casey—“the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

The NRLC brief reminds the justices that because Justice Sandra Day O’Connor “coauthored the Casey joint opinion that largely adopted her Akron-dissent analysis, examining her Akron analysis is vital to interpreting Casey.”

The NRLC brief observes that “In Akron, she attacked the medical board approach several ways.” To name two, O’Connor “rejected the idea of this Court as ‘Platonic Guardians’ who may substitute their judgment for legislators” and noted the importance of paying “careful attention” to how state legislatures have addressed “extremely sensitive issues.” O’Connor wrote

In determining whether the State imposes an “undue burden,” we must keep in mind that when we are concerned with extremely sensitive issues, such as the one involved here, “the appropriate forum for their resolution in a democracy is the legislature. We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’” This does not mean that in determining whether a regulation imposes an “undue burden” on the Roe right that we defer to the judgments made by state legislatures. “The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem.