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Less than a week after the Supreme Court’s major abortion ruling in Whole Woman’s Health v. Hellerstedt, related restrictions across the country began falling like dominoes.
And that's just the beginning, according to advocates for abortion rights, who say their victory at the court will both strengthen existing efforts to beat back such laws and offer them a new set of tools for future challenges.
“I suspect that we’re just seeing the tip of the iceberg,” said Janet Crepps, senior counsel at the Center for Reproductive Rights, which represented the victorious Texas abortion clinics before the Supreme Court. “This opinion is going to have long term ramifications and ripple effects in current cases and cases we’ll be bringing.”
Since Monday, laws restricting abortion and non-abortion Planned Parenthood funding have already been temporarily or permanently wiped out in six states. The Center for Reproductive Rights filed a new case Friday challenging a whopping seven of Louisiana’s new abortion restrictions. And on the heels of Whole Woman’s Health, Planned Parenthood Federation of America announced an effort to pursue repealing laws in eight states through legislatures. (Even lawmakers hostile to abortion may prefer the less expensive option of repealing a law, rather than having to defend one that is unlikely to stand after the Supreme Court’s decision.)
Four of the legal victories were near-automatic. States that had been already blocked by a court from requiring physicians performing abortions to have admitting privileges at hospitals — laws in Wisconsin, Mississippi, and Louisiana nearly identical to Texas’ — had to go home disappointed on Tuesday when the court refused to hear their appeals.
Alabama’s attorney general also said he would not appeal to defend his state’s admitting privileges law, already on hold from a lower court. "While I disagree with the high court's decision, there is no good faith argument that Alabama's law remains constitutional in light of the Supreme Court ruling," Attorney General Luther Strange said in a statement.
After that, things got even more interesting. A federal judge Thursday put on hold an Indiana law that, among other provisions, forbade abortion on the basis of race, sex, or genetic anomaly, and also required cremations or burials for all embryonic or fetal remains from an abortion. Judge Tanya Walton Pratt cited Whole Woman’s Health only in a footnote in the 30 page opinion. But she may have been waiting to make sure the court didn’t act in a way that would change her analysis.
Indiana had argued that its new prohibitions on the reasons behind abortion were intended to reduce discrimination and thus did not fall under the usual abortion precedents, which have long said states cannot ban the procedure before viability.
"It is a woman’s right to choose an abortion that is protected, which, of course, leaves no room for the State to examine the basis or bases upon which a woman makes her choice,” Walton Pratt replied in her opinion.
Finally, also on Thursday, a federal district court temporarily blocked a different set of restrictions passed by Florida, including defunding Planned Parenthood and requiring additional inspections for abortion clinics. “For all that is shown by this record, the inspection provision is a solution in search of a problem,” wrote federal district court judge Robert L. Hinkle.
“Nobody has contended that the plaintiffs have done anything in connection with the publicly funded programs that is inconsistent in any way with the goals of those programs,” Hinkle continued. “The state’s only beef is that the plaintiffs provide abortions.”
As for those abortions, Hinkle wrote, citing Whole Woman’s Health, “A patient has a right to an abortion, within limits.”
The new Louisiana lawsuit, filed Friday by the Center for Reproductive Rights on behalf of abortion providers in Louisiana, challenges a kitchen sink collection of abortion restrictions. One, law, S.B. 33 “imposes a term of decades of imprisonment at hard labor for receiving reimbursement for the costs of collecting and storing tissue from abortions, but not miscarriages, for medical research.” Federal law allows for reasonable reimbursements of costs, but not “valuable consideration,” from the donation of fetal tissue for the purposes of medical research.
Other challenged laws include requiring cremations and burials for remains, a ban on a common second-trimester procedure, known as dilation and evacuation, or D&E, and increasing Louisiana’s existing waiting period between required counseling for abortion to 72 hours.
"There is no health benefit to a woman in preventing her from granting informed consent to an abortion, after she has visited a clinic, met with a doctor, and been given all the information necessary to grant informed consent, until after a three-day period has passed,” charged the legal complain. It was a seeming echo of Whole Woman’s Health analysis of the benefits of Texas’ law, which it said had to be balanced against the burden on women.
Another relatively novel restriction, H.B. 488, sounds similar to the admitting privileges provision struck down by the Supreme Court. By imposing new credentialing requirements on doctors, it “limits the pool of physicians eligible to perform abortions solely to those board-certified in family medicine or obstetrics and gynecology, or to residency trainees under their supervision,” according to the complaint.
“What Whole Woman’s Health has done is give us a really powerful tool in support of those arguments,” said Crepps. “The court basically has said the legislature cannot pass restrictions that are a sham, where the state is saying they’re intended to do one thing but there’s no evidence they’re going to do that.”
She said the decision would have even more impact in appeals courts like the 5th Circuit, where both Louisiana and Texas sit and which have recently given states wide latitude to restrict abortion. Several 5th Circuit judges had focused more on how much of a burden the laws had put on women rather than whether they were “undue,” in the Supreme Court’s words.
The Supreme Court could not have rebuked the 5th Circuit more clearly on Monday. “The Court of Appeals’ articulation of the relevant standard is incorrect,” wrote Justice Stephen Breyer. The precedent, he added, dictated that “courts consider the burdens a law imposes on abortion access together with the benefits.”
Planned Parenthood’s efforts will be be focused on a range of restrictions at the state level, some of which have litigation already pending. A spokeswoman for Missouri’s Attorney General, Chris Koster, has already said that admitting privilege and ambulatory surgical center requirements are now called “into serious question.” The group also plans to focus on clinic restrictions in Virginia, Arizona, Michigan, Pennsylvania and Tennessee, and to look at toppling more of Texas’s barriers to abortion that were not directly at issue in Whole Woman’s Health.
"We will fight back state by state and law by law until every person has access to safe, legal abortion," said Dawn Laguens, executive vice president of Planned Parenthood Action Fund. "No matter how long it takes, these laws will fall." The group did not rule out the possibility of future lawsuits.
It remains to be seen whether Whole Woman’s Health will be a tool against pre-viability bans on abortion at 20 weeks, on the much-challenged theory that fetuses can feel pain at that stage. “Everybody needs to sit down with the opinion and see where to go from here,” said Crepps.
“This is a really exciting time for reproductive rights advocates," she added.
Asked when she had last uttered those words, Crepps admitted, “I can’t remember.”