From now on, the court warned, it would no longer, as the White Queen said in “Through the Looking Glass,” believe “as many as six impossible things before breakfast.” Not even about abortion. Not even, the Court emphasized, when the impossible suggestions, like looking after women’s health, come from the legislative branch. You want to help women out, Breyer wrote? You gotta prove it to us.
The Court’s opinion seems to be the death knell for two decades of antiabortion activism, which has cloaked itself in unsupported assertions that women need to be protected against abortion rights. The strategy of purporting to help women, which has, until today, been stunningly successful, started with the attack on so-called “partial birth abortion” in 1995. It reached its high water mark with Justice Anthony Kennedy’s hotly contested 5-to-4 decision upholding the restrictions on such procedures in Gonzales v. Carhart in 2007. Kennedy found medical disagreement about the safety advantages of the procedure. Importantly, he then deferred to the findings of the legislature that women would be safer and better off without partial birth abortion. Justice Ruth Bader Ginsburg devoted her dissent in Gonzales to eviscerating his decision to defer, with special emphasis on the way that Congress got to its findings about the safety of partial birth abortion and the findings themselves.
The link between helping women and restricting their access to abortion, never very convincing, grew more and more attenuated as conservative state legislatures took Kennedy’s majority opinion in Gonzales to mean open season on abortion. As long as they found for themselves that they were helping women, they thought, they were protected from the Constitution. A bunch of legislatures passed such laws. The Texas law requiring surgical standards and admitting privileges with a hospital, which the court struck down Monday, is just one extreme example of the anti-choice strategy. But Breyer’s opinion and, implicitly, Kennedy’s vote with the majority indicate that Texas did not help its cause by pushing the envelope. Defending its law, Texas’s lawyers contended that more rigorous standards for doctors who perform abortions and for abortion facilities were needed to help women. However, “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement [requiring admitting privileges] would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case,” Breyer wrote.
Needing Kennedy’s vote in the Texas decision, Breyer emphasized that even Gonzales didn’t say the court always had to defer to the legislature on factual matters. Breyer wrote: “Gonzales went on to point out that the ‘Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.'”
This portion of Breyer’s opinion looks like a clean sweep for Ginsburg and the dissenters in the prior case. But here’s the rub: Breyer’s distinction is a fragile one, given the language and outcome in Gonzales, so he buttressed it by noting that the Texas legislature hadn’t even made any findings in the current law. Uh oh. A bunch more laws like Texas’s law are waiting in the wings in lower courts. And Alabama’s law, for example, includes a long recitation of legislative findings.
And that’s where Ginsburg weighed in with one of her signature futuristic concurring opinions. When the news broke that RBG was concurring, the initial reaction was puzzlement. Why would Ginsburg need to write separately from a pro-choice opinion by her liberal colleague Breyer? Looking at her concurrence, however, the explanation is clear.
The concurrence is less than two pages. She dismisses Texas’s argument about its interest in protecting “the health of women who experience complications from abortions,” by countering that “complications from an abortion are both rare and rarely dangerous.” She recites a laundry list of studies of how safe abortion is, and then she delivers the message: “So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.” [Emphasis added.]
She is writing into law the factual finding that abortion is safe, full stop. When the court turns to the Alabama law, with its “finding” that women need abortion to be restricted, she wants that future court to be able to cite to her opinion that they do not.