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The Judicial Assault on Roe v. Wade Has Begun

With Kavanaugh’s confirmation imminent, anti-abortion judges are declaring war on the right to choose.

Brett Kavanaugh hasn’t even been confirmed to the Supreme Court, and lower-court judges have already declared war on Roe v. Wade.

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On Monday morning, the 8th U.S. Circuit Court of Appeals issued an astonishing decision upholding a law that’s virtually identical to an anti-abortion measure the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. The three-judge panel, composed entirely of Republican appointees (including a Trump judge), essentially defied the Supreme Court in allowing Missouri to saddle abortion clinics with pointless regulations designed to guarantee their closure. It’s a preview of how the courts will overturn Roe—swiftly, ruthlessly, and dishonestly—once Kavanaugh is confirmed.

Monday’s ruling in Comprehensive Health v. Hawley was authored by Judge Bobby Shepherd, a George W. Bush appointee who has expressed hostility toward Roe before. In a 2015 ruling, Shepherd begrudgingly struck down North Dakota’s “fetal heartbeat” bill, which would’ve banned abortions after six weeks. In making that decision, though, he attacked the Supreme Court precedents he was forced to follow, urging SCOTUS to “reevaluate its jurisprudence” and overturn Roe. Shepherd’s bizarre opinion went on to cite pseudoscience about “the regrets of the women who abort” and the (nonexistent) “connection between abortion and breast cancer” while condemning nefarious abortion “mills.”

Still, for all Shepherd’s anti-abortion rhetoric, he ultimately recognized that if he struck down the law he’d promptly get reversed by the Supreme Court. Three years later, this calculation has clearly changed. With Kavanaugh’s confirmation likely to go through this month, Shepherd no longer feels obliged to comply with Roe or its successor cases. In Planned Parenthood v. Casey and Whole Woman’s Health, the Supreme Court held that any law that imposes an “undue burden” on a woman’s access to abortion violates the U.S. Constitution. If a court determines that burdens of a certain restriction outweigh the benefits, it must strike down the law.

The Missouri measure in question is nearly indistinguishable from the Texas law that SCOTUS invalidated in Whole Woman’s Health. It imposes two requirements on abortion clinics: They must meet complex, pricey, and medically unnecessary architectural standards; and their doctors must be “privileged to perform surgical procedures” at a hospital that’s no more than 15 minutes away than the clinic in question.

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This first regulation differs slightly from the Texas law in Whole Woman’s Health, because clinics can, in theory, obtain a waiver from individual “physical plant regulations.” The second regulation, however, is actually more severe than its Texas counterpart. That law forced abortion providers to have “admitting privileges” at a hospital within 30 miles of their clinic. The Missouri law, by contrast, forces providers to be allowed to perform surgery—a significantly more stringent standard—at a hospital much closer by.

Recognizing these similarities, U.S. District Judge Howard F. Sachs blocked the Missouri law in 2017. Sachs said the state’s efforts to work around Whole Woman’s Health is akin to an attempt “to undermine Brown v. Board of Education” by insisting that “racial segregation in Missouri is more benign than elsewhere.” The Supreme Court, after all, found that Texas’ targeted restrictions were “useless, from a health standpoint” and addressed “no significant health-related problem,” while placing a “substantial obstacle in the path of a woman’s choice.” Missouri had merely cribbed its laws from the Texas playbook, and so they must also be unconstitutional. The case, Sachs held, was “not a close one” in light of “the lesson” of Whole Woman’s Health.

Shepherd saw things differently. He reversed Sachs’ preliminary injunction, suggesting that the district court judge relied upon “slight implication and vague conjecture” to justify freezing Missouri’s laws. Shepherd distinguished Missouri’s “physical plant regulations” from Texas’ by noting that Missouri clinics can hypothetically obtain waivers from specific design elements. The court, he wrote, could not strike down the law until it had more evidence of how generously the state grants these waivers. It is difficult to square this holding with the Supreme Court’s finding in Whole Woman’s Health that elaborate architectural requirements do not further women’s health.

But Shepherd’s next conclusion was even more egregious. It would be impossible to uphold Missouri’s surgical privileges mandate under a fair reading of Whole Woman’s Health, which emphatically rejected the notion that such rules benefit women. So Shepherd willfully misread the ruling. The Supreme Court, he wrote, “did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional.” Yes, the court found that abortion was extremely safe in Texas—but “no such determination about abortion in Missouri was made here.”

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This passage constitutes open defiance of the Supreme Court dressed up in the thin pretext of legalese. No one seriously asserts that abortion is currently more dangerous in Missouri than it is in Texas. And the Supreme Court did not purport to limit its analysis to Texas in Whole Woman’s Health; to the contrary, it noted that similar admitting privileges laws in Wisconsin and Alabama had been struck down as unnecessary for women’s health. That analysis plainly compels the invalidation of Missouri’s surgical privileges law—which, again, is even more draconian than Texas’ analogue. Yet Shepherd refused to block it, dishonestly speculating that Missouri could be “responding to … a unique problem” with abortion in the state. No such problem exists. This claim is mere pretext to ignore Whole Woman’s Health.

There’s no mystery why Shepherd chose this moment to flout the Supreme Court’s abortion jurisprudence. So long as Justice Anthony Kennedy sat on the court, laws like Missouri’s were likely to get struck down at SCOTUS. But as soon as Kennedy retired, Roe’s demise was all but guaranteed. His probable successor, Brett Kavanaugh, has a strong anti-abortion record, and emitted anti-choice dog whistles throughout his confirmation hearings. Once he joins the bench, the court will begin upholding anti-abortion laws—starting, perhaps, with Missouri’s—by defining an “undue burden” downward. And after it has eroded that standard to the point of meaningless, it will overturn Roe altogether.

That’s why judges like Shepherd have been emboldened this summer. He isn’t the first to cheer on Roe’s downfall. In July, 5th U.S. Circuit Court of Appeals Judge James Ho, a Trump appointee, bemoaned the “moral tragedy of abortion” and implied that Roe is illegitimate. In August, 11th U.S. Circuit Court of Appeals Judge Joel Fredrick Dubina, a George H.W. Bush appointee, declared that the right to abortion “has no basis in the Constitution.”

These judges see what’s on the horizon. They have been waiting for this moment for their entire careers, and they will do everything they can to hasten its arrival. It is quite obvious to everyone not named Susan Collins that Kavanaugh’s confirmation will spell the end of Roe. Anyone who doubts that fact should look to the lower courts, where abortion foes are eagerly laying the groundwork for our imminent post-Roe reality.