A divided Supreme Court is pondering how to apply precedent to abortion cases with the release of a briefing in which liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor disagree with their conservative colleagues on how to exercise their responsibility to review new information.
A four-justice majority is willing to consider a constitutionally new determination, but two of those justices make clear in their briefs that their approach is tenuous and raises immediate legal questions.
The approach has sparked a new debate about the very question of how “sovereign states” can deal with abortion, a topic many justices seemed unlikely to leave unanswered.
Roe v. Wade is the 1973 Supreme Court case that established a constitutional right to abortion, including in the first trimester. A 1993 decision, Planned Parenthood v. Casey, also affirmed the right, but stated that an abortion was generally permissible under the state government’s authority only where the procedure was necessary to preserve the mother’s health.
In the less than 20 years since, more evidence about the possibility of medical improvements has emerged, and new restrictions have been approved at the state level by the highest courts in five states — North Dakota, Texas, Mississippi, Louisiana and South Dakota.
The two liberal justices who did not sign on to the analysis of the brief from the three conservatives on the court — Brett Kavanaugh, Samuel Alito and Neil Gorsuch — went out of their way to remind their colleagues that some of their authority to weigh in on new abortion cases had been exhausted by oral arguments and their vote and have this second bite at it.
Sotomayor suggested that the high court review the case “in a similar way” to that the court did with recent legal challenges to public employee unions: examine documents by other justices on whether the issues raised in the cases are sufficiently “new and novel” and therefore entitled to review, particularly in cases where states are attempting to impose regulations that have been repeatedly rejected by federal courts of appeals.
“It seems to me, that analogy is a very strong one,” Sotomayor said in a conference call, “and I think it is a very logical one to go down that path. But of course that requires the justices to imagine that a new issue arises, that there is a superimposition of a new issue on an issue of review already here, because I don’t think the federal appellate courts were, frankly, looking at the question in any significant way.”
Similarly, Ginsburg wrote, “It seems to me that if the states place an obstacle in the path of a woman who seeks an abortion that impedes her ability to obtain one, there is a fundamental right to an abortion that the courts would have a duty to address. It follows that because all courts would therefore be compelled to review new state statutes like the Texas law, questions about Roe may be better evaluated under the so-called precedent-review analysis.”
Ginsburg also suggested that she could not trust Kavanaugh to make a decision on Roe if he were to be elevated to the high court, because the same groups working on those cases might be opposing his confirmation.
A number of justices suggested that this court has not been willing to review prior cases on state abortion regulation in order to provide opportunities for hypothetical situations in which the justices might have a stronger desire to clear off a decision set by lower courts.
For instance, Justice Stephen Breyer suggested that although they had agreed in 2003 to consider a challenge to a law in Oklahoma in the wake of similar challenges in other states, they might be inclined to vacate the decision because “every federal circuit court has said that the state law was overbroad and that there was no interest on the part of the state to regulate the issue. This is a longstanding holding that has been accepted by all our appellate courts, so we don’t see why we would dismiss it.”
Ginsburg also outlined a series of hypothetical situations in which the Supreme Court might “tune” previous precedents like that in Oklahoma to suit the facts, “so that we look at a case differently in ways that might be especially well suited to the facts in each case.”