Abortion will be a major topic this spring when the Supreme Court hears a Texas case that could redefine a woman's right to end her pregnancy.
In the interim, a conservative judge from the U.S. Court of Appeals for the 7th Circuit, which sits in Chicago, penned a succinct but exemplary court ruling that sets the stage for the constitutional showdown ahead.
The decades-long fight over access to lawful abortions means different things to different people. But at its core -- and of chief concern to Supreme Court justices -- lies the question of whether states are placing an "undue burden" on a woman's choice.
If the answer is yes, then a state violates the Constitution.
That's exactly what U.S. Circuit Judge Richard Posner concluded in a 29-page decision, issued Monday, striking down as unconstitutional a 2013 Wisconsin law requiring all doctors at abortion clinics to possess "admitting privileges" at a hospital within a 30-mile radius.
If it wasn't for a lawsuit that two abortion providers filed on the same day the law was signed, Posner said, two of the four abortion clinics in Wisconsin would have been forced to shut down "because none of their doctors had admitting privileges at a hospital within the prescribed radius."
And it wasn't for a lack of trying. Five months after the law would have gone into effect -- a court order temporarily blocked it -- one doctor's application for admitting privileges had been denied and all the others were still waiting for a response. The process of obtaining privileges, it turned out, was simply too onerous for doctors whose sole practice was performing abortions.
Wisconsin had argued unsuccessfully that there was "no evidence" lawmakers knew it would be so difficult for abortion doctors to obtain admitting privileges. Posner wasn't having it.
"That insults the legislators’ intelligence," the judge wrote. "How could they have thought that an abortion doctor, or any doctor for that matter, could obtain admitting privileges in so short a time as allowed? The clinics would have had to close, and months would have passed before they could reopen."
Posner wasn't done. He likewise rejected other arguments Wisconsin offered for the admitting-privileges provision: concern for "continuity of care," in the event of complications, from a clinic to a local hospital; the need for abortion doctors to receive a "Good Housekeeping Seal of Approval" from a reputable inpatient facility; that women's health would be "endangered" without the requirement.
There was little to no evidence supporting the claims.
But the kicker for Posner was the "weird" remedy the law provided in the event a doctor broke the law: The father or grandfather of the "aborted unborn fetus" could sue the doctor who lacked admitting privileges for damages -- never mind that the letter of the law doesn't require the woman to suffer actual harm as a result of the absence of admitting privileges.
So much for Wisconsin's interest in advancing women's health.
“Opponents of abortion reveal their true objectives whenthey procure legislation limited to a medical procedure—abortion—that rarely produces a medical emergency.”
- U.S. Circuit Judge Richard Posner
Most of all, Posner wrote that he worried -- should the clinics be forced to close -- about who the law would hit hardest: the "more than 50 percent of Wisconsin women seeking abortions" who are simply too poor to afford to take time off work, find care for children, or take a 90-mile trip to nearby Chicago to obtain an abortion.
"The State of Wisconsin is not offering to pick up the tab, or any part of it," the judge wrote.
Here's where the ruling reached its key moment, bringing to the fore what may be the true impetus behind abortion restrictions in Wisconsin and other states -- including the one behind a similar Texas law now before the Supreme Court:
A great many Americans, including a number of judges, legislators, governors, and civil servants, are passionately opposed to abortion — as they are entitled to be. But persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them. They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.
That's the crux of the looming constitutional showdown. And it's precisely the issue in the Texas law the Supreme Court will be reviewing next spring. Posner, in no uncertain terms, took the liberty to call the evidence the state presented in that case "weak," and went as far as to suggest it may be unconstitutional.
That's not for him to decide, and there's no telling if the Supreme Court justices will agree with him. But if they're paying attention -- especially Justice Anthony Kennedy, a fellow Reagan appointee widely seen as pivotal to abortion rights -- Posner's words may offer a blueprint for the court to follow.
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