What SCOTUS Abortion Ruling Means for TN’s New Abortion Law

Jul 3, 2020 by David Fowler

Louisiana SCOTUS abortion commentary
On Monday, the United States Supreme Court issued its latest travesty, this time a judgment holding unconstitutional an abortion-related law in Louisiana. But no one should be surprised that the Court failed to use the case to overrule Roe v. Wade. Even I predicted that back in February. Now, here is my prediction for what the decision means for the abortion law just enacted by the Tennessee General Assembly.
To understand the Court’s judgment (notice I did not say “opinion” and hold that thought) and what it means for Tennessee’s newly enacted step or laddered approach to banning abortion, you need to understand two things.

First, the Court was not asked to overturn Roe v. Wade or Planned Parenthood v. Casey.

For those who think that any law that impinges on abortion provides an opportunity for the Court to reverse Roe and Casey, please get that thought out of your head. I explained why in this February commentary, but Robert’s summed it up in his concurring opinion. He wrote:

Both Louisiana and the providers agree that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law. Neither party has asked us to re-assess the constitutional validity of that standard.

Agreeing with Planned Parenthood about the rules is a great way to lose. We have not because we ask not.

Second, the “effect”-on-abortion test is a killer.

While Roe was never threatened by the Louisiana law, some hoped that the law would be upheld because of factual distinctions between the effects of Louisiana’s law on abortion vis-à-vis the effects of the Texas law held unconstitutional in Whole Woman’s Health.

The “effects” standard in Casey was quoted by Roberts in his opinion: “[T]he only question for a court is whether a law has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

If the effect of an abortion law is to create a substantial obstacle, particularly prior to fetal viability, then the law is unconstitutional.

As to the effect of the Louisiana law, Justice Breyer said that “the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is ‘clearly erroneous.’ Given the facts found, we must also uphold the District Court’s related factual and legal determinations.” In this, Roberts agreed.

What this means for Tennessee’s Recently Enacted Abortion Law

The provisions of the abortion legislation just enacted by the Tennessee General Assembly banning abortion at various points between the detection of the heartbeat and 24 weeks will be subject to that same “effects” standard unless the state or a group of intervening lawmakers does what I suggest below.

To appreciate why the Casey “effects” standard would apply, notice what the Bill says:
(33) The United States Supreme Court created the viability standard for evaluating abortion-related laws and regulations in Roe v. Wade, 410 U.S. 113 (1973), and reaffirmed this approach in Planned Parenthood v. Casey, 505 U.S. 833 (1992);
(34) At the time Roe v. Wade was decided, the court recognized that viability was not likely until approximately twenty-eight (28) weeks gestational age;
(35) Since the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, advances in science, technology, and treatment methods have resulted in children surviving and thriving at younger preterm ages than ever before;

(36) In recent years, scientific advances and advances in neonatal care have lowered the gestational limits of survivability well into the second trimester;

Let me interpret. The bill appears to say what Louisiana conceded: Roe and Casey set the constitutional standard as “viability.” The bill says viability is getting lower as medical science and technology improve.

That’s great. That’s true. But so what as a constitutional matter? It’s still not below 22 weeks according to what the legislature put in its own bill.

This is not good. Anything under viability will have an unconstitutional effect on abortion, and the law will be unconstitutional.

Is there any ‘Good’ News?

Yes. The good news it is that Chief Justice Roberts did not join in the opinion written by Justice Breyer and which Justices Ginsberg, Sotomayor, and Kagan joined. Roberts joined only in the judgment, not the analysis.

In other words, he did not say that Roe and Casey were “good law,” but only that those decisions were the standard for judging state abortion laws as long as the state was not going to directly challenge those precedents. Since Whole Woman’s Health was based on Roe and Casey, which weren’t challenged, he stuck with following the precedent in Whole Women’s Health.

Why is this good news?

During the last session, the Governor and the Senate wanted proof there might be five justices who would vote to overturn Roe and Casey before they would support a law directly challenging them. That’s why they put in 10 different stages of fetal development into the bill just passed; banning abortion at the point life was detected in order to protect an unborn child’s common law right to life was too risky.

But now, as I explain below, they have evidence of the type they wanted. But, I predict the state will not win and the law will be held unenforceable if it makes the same would-you-give-us-an-exception-to-Roe-and-Casey legal argument that Louisiana made.

A pre-viability ban on abortion clearly has a bad “effect” on abortion rights, and that is a killer under the Roe and Casey effects standard.

What the State needs to do

While the Governor and the legislature rejected legislation protecting life from its detection based on the Ninth Amendment argument for the right to life, they did well by referencing the Ninth Amendment in the bill’s language:
(6) The state has a legitimate, substantial, and compelling interest in protecting the rights of all human beings, including the fundamental and absolute right of unborn human beings to life, liberty, and all rights protected by the Fourteenth and Ninth Amendments to the United States Constitution;

(7) The presence of a fetal heartbeat is medically significant because the heartbeat is a discernible sign of life at every stage of human existence; 

In other words, the bill, as enacted, does not preclude the state from making an argument based on the conception of law (common law) and rights (at common law) guaranteed “to the people” by the Ninth Amendment.

Justice Roberts, by concurring only in the judgment, said nothing about how he would respond to an argument for restricting abortion when grounded in a Ninth Amendment rule of law argument.

If the Attorney General will make this argument or, if he will not, then if legislators will ask to intervene in order to make it for themselves, pro-life Tennesseans may find they have done something no other state has been able to do—present a legal issue to the Supreme Court that will not allow the justices to avoid a confrontation with the specious justification given for abortion in Roe and Casey.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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