Fifth Circuit Invites SCOTUS To Gut Roe v. Wade

It’s been on the horizon ever since Justice Kennedy created a big loophole in the right to choose in the “partial-birth abortion” case of Gonzales v. Carhart in 2007, which validated the antichoice tactic of using “health” provisions deemed unnecessary or even harmful by medical professionals to restrict access to abortion services. As Republican-controlled state legislatures have moved into this loophole aggressively, guerrilla warfare has broken out in the federal courts with some restrictions surviving challenges and others succumbing. But the biggest antichoice victory yet just occurred in the conservative southern Fifth Circuit Court of Appeals, which upheld a Texas law designed to shut down most of that state’s abortion clinics. Ian Millhiser of Think Progress has the details:

On Tuesday, a panel of three George W. Bush-appointed judges handed down a sweeping endorsement of the tactics anti-abortion lawmakers adopted in recent years in an effort to prevent abortion clinics from operating. With one narrow exception, the United States Court of Appeals for the Fifth Circuit’s decision in Whole Woman’s Health v. Cole is a total defeat for abortion providers who hoped to overcome a Texas law that will shut down most of the state’s abortion clinics. Worse for women seeking an abortion, the Fifth Circuit’s opinion would give many other states broad discretion to restrict access to abortion if its reasoning is ultimately adopted by the Supreme Court.

The last reference involves the decision’s holding that in cases of uncertainty involving the necessity of this or that “health” restriction, legislatures are justified in making their own call. In effect that means so long as states can find a couple of antichoice docs to agree with their point of view, “uncertainty” is established and the legislature can resolve it, even though everyone involved knows it’s all just a pretext for denying abortion services

And so the perverse reasoning of Kennedy in Carhart has reached full fruition: the “health of the mother” language in Roe and the subsequent Casey decision, long deplored by antichoicers as establishing “abortion by demand,” is being turned into the great validator of abortion restrictions. The Fifth Circuit sure seems as though it’s sent an engraved invitation to Kennedy to use the Texas case–or perhaps a similar one involving Mississippi–to gut Roe. This has long been the fear of reproductive rights advocates who have in some cases avoiding or slow-walked challenges to abortion restrictions to avoid precisely this situation.

But this is a gamble for the antichoicers, too, since nobody knows what the unpredictable Kennedy–and his views are really the only ones that matter at the moment–will do in a case like this. A whole lot of the grand strategy on abortion for both sides depends on who wins the next presidential election, and how the Court might be reshaped on 5-4 issues.

Remember this when someone tells you about this time next year that it doesn’t really matter who wins the presidential contest, since both major-party candidates are corporate whores. Try to explain that to women whose reproductive rights might be about to vanish.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.