Three Republican judges go into a St. Louis courtroom in March; an anti-abortion opinion-flouting Supreme Court precedent walks out in September. Is it any surprise, as emails surface in which Supreme Court nominee Brett Kavanaugh circulated articles calling Roe v. Wade bad law?
The three-judge panel of the Eighth Circuit, which included one Trump appointee, reversed a Missouri federal district court on Monday to uphold state law that’s all but identical, as Mark Joseph Stern observed, to a law SCOTUS struck just two years ago in Whole Women’s Health v. Hellerstedt.
The Texas law the court confronted in 2016 required abortion providers to have “active admitting privileges” at a hospital within 30 miles of the procedure and mandated that clinics must meet ambulatory surgical center requirements. In an opinion by Justice Stephen Breyer, joined by justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, the court rejected these provisions unambiguously.
We conclude that neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the [Fourteenth Amendment].
Missouri lawmakers’ method of enacting a version of the Texas law back in 2007 was to change the definition of “ambulatory surgical center” in law to include abortion facilities. Physicians who perform procedures at these centers must have surgical privileges at a hospital no more than 15 minutes away. Moreover, Missouri’s placed “physical plant restrictions” on clinics, specifying how the building must be laid out down to the hallways.
The instant case arose out of a new challenge to the Missouri law—an initial challenge ended in a 2010 settlement—following the decision in Hellerstedt. It should have been straightforward: If Texas can’t get away with its law, Missouri surely can’t keep its even more restrictive version of the same in place. Instead, the judges attacked the district court judge’s analysis to create a pretext for defying the Supreme Court.
Would they have done it without Kavanaugh in the pipeline? Or had Trump not already effected the most outrageous partisan takeover of the judiciary in history?
Probably not.
Appellate court judges have historically been attentive to the likelihood of being overturned. But Anthony Kennedy, the Supreme Court swing vote who clinched Hellerstedt, is gone, and judicial norms are a distant memory. Senate Republicans have abandoned all pretense of valuing independence; Republican judges have, too, and not just the Trump appointees. After all, George W. Bush wasn’t shy about forcing extreme judges through, either.
This Eighth Circuit panel is banking on having Kavanaugh on the Supreme Court. If he’s not there yet for some reason by the time the petition for certiorari is under consideration—assuming pro-choice proponents risk an appeal that could result in a nationwide rather than seven-state rollback of abortion rights—the worst than could happen is a 4-4 split that leaves the Eighth Circuit decision in place.
So what are reproductive rights advocates to do? The case’s backers are in a bind. They’re considering an appeal to the full Eighth Circuit—a.k.a. asking for an en banc hearing—as an intermediate step, but the risk there is the same as with a petition to the Supreme Court: If the full Eighth Circuit vacates the panel’s decision and strikes the law, Missouri can appeal to the Supreme Court.
There’s a reason the far-right went wild when Trump nominated Kavanaugh: He’s just waiting for a case like this to remake Supreme Court precedent. Maybe he and his ilk on the Court would draw a fatuous distinction to uphold the Eighth Circuit, effectively overturning Hellerstedt. Maybe they’d say that the dissent in that decision gave abortion providers notice already and simply reverse Hellerstedt. Or maybe they’ll go for Roe straightaway. The only certainty is that it’ll be one of the three.