The Supreme Court and the attacks on Roe v. Wade. A look to the latest SCOTUS’s judgments on abortion, by Cristina Luzzi*

In Whole Woman’s Health v. Jackson 595 (U.S.), 2021, the Supreme Court once again rules on Texas Heartbeat Act, also known as S.B.8. The last Texan law, which went into effect on September 1, 2021, prohibits doctors from performing almost all of abortions, even in cases of rape, starting around six weeks of pregnancy when the fetal heartbeat generally starts to be detectable. Not only, S.B.8 also allows any civil person to bring a civil action, for at least 10,000 dollars in damages, against anyone performs, assists, or helps with prohibited abortions. As noted by Justice Sotomayor, this «untenable» provision might include obviously a medical provider, but also «a friend who book an appointment, or a ride-share driver who takes a woman to clinic».

Notwithstanding this clause and the distance of S.B.8 from Roe v. Wade, 410 (U.S.), 1973  and Planned Parenthood of Southeastern Pa v. Casey 505 (U.S.), 1992 which, as well known, recognize the woman’s right to abortion up to the 24th week of pregnancy, when approximately the fetus becomes viable, the Supreme Court rejects abortion providers’ request of injunctions against Texan state-court clerks and judges. The Court rules the petitioners can only proceed against a group of state medical licensing officials but not against state-court clerks and judges whose activities of docketing and hearing cases do not represent an enforcement of S. B. 8.

Although the Court points out that the judgment is not a review of the constitutionality of new Texan law, it is interesting to notice how, using a procedural argument to deny abortion providers’ request, the majority of constitutional judges prefer to ignore the Texas Heartbeat Act’s effects on the exercise of constitutional rights, as the women’s right to abortion and, as noticed by Justice Sotomayor, the abortion providers’ right to due process. In fact, the entry into force of S.B.8, and in particular the prohibition of claim preclusion, exposes them to the continuous risk of being sued for the same conduct in different state courts encouraging several abortion clinics to close.

But the consequences of Texas Heartbeat Act involve, above all, the women’s right to control her own bodies put in danger, not only by the progressive reduction of abortion clinics, but also by voluntary abortion’s ban from the point in which the fetal heartbeat is detectable. Abortions become unlawful essentially before many women realize they are pregnant (well before fetal viability) forcing them to carry on with unwanted pregnancies or “to choose” backstreet abortions.

In Whole Woman’s Health v. Jackson 595 (US), 2021, which follows the first SCOTUS’s decision Whole Woman’s Health v. Jackson 594 (US), 2021 to leave in effect the Texas Heartbeat Act, the Supreme Court appears more tolerant than her previous jurisprudence with anti-abortion state legislations.

It is a notable fact, considering that before these last two judgements the Supreme Court has shown no (express) inclination to overrule her historical – but still alive – precedents Roe v. Wade and Planned Parenthood of Southeastern Pa v. Casey.

Indeed, with Whole Woman’s Health v. Hellerstedt 579 (U.S.), 2016, the SCOTUS withstands the attack on abortion right by a Texan law (once again) and declares it unconstitutional affirming «nothing suggests that the law satisfies the legitimate interest of protecting women’s health, which Texas claims to pursue». Promoting the women’s health, as all the well-known “TRAP laws”, the Texan law also has established stringent requirements for abortion providers physicians imposing them to hold local hospital admitting privileges. Nevertheless, as recognized by the Court, this requirement (not expected for the childbirth either!) imposes an undue burden on the right to abortion considering the law has provoked the closure of many abortion clinics and forced women seeking an interruption of their pregnancies to travel a lot and to face abortions into overloaded abortion clinics without the previous appropriate medical or psychological supports.

For the same reasons, and more recently, with June Medical Services L. L. C. v. Russo, 591 (U.S.), 2020 the Supreme Court strikes down the Louisiana law that, in the same way as the previous Texan “TRAP” law, by imposing abortion providers to have active admitting privileges to hospitals no further than 30 miles from the clinics where abortions are performed, would have constituted an undue burden on the women’s constitutional right to terminate unwanted pregnancies.

Although, some scholars underscore the women’s reproductive rights are put in danger by this last judgement first, particularly by the Chief Justice Roberts’s concurrence that seems to suggest the replacement of the undue burden test introduced by Planned Parenthood of Southeastern Pa v. Casey and enhanced by Whole Woman’s Health v. Hellerstedt before, and Juno Medical Services L. L.  C. v. Russo later. According to him, when valuing “TRAP laws”, courts should not balance burdens against benefits but only considering if there is a “substantial obstacle” to the exercise of abortion’s right or if the law lacks a rational basis.

Aside from the impact of Roberts’s opinion on SCOTUS’s judgments, during the pandemic, with Food and Drugs Administration (FDA) v. American College of Obstetricians and Gynaecologists 592 (U.S.), 2021,  the Supreme Court gives a sign of her new (possible) “gentle attitude” against abortion restrictions.

In fact, in spite of the decision of a District Court to protect the women’ s right to a safe abortion by suspending the FDA’s decision about medication abortion, the majority of constitutional judges rules on (and saves) the FDA’s decision to exclude the mifepristone from the personal dispensing and signature requirements.

From this point of view, even if this last case is similar but not identical with a judgment on a “TRAP law”, together with Whole Woman’s Health v. Jackson 595 (U.S.), 2021 and above all Whole Woman’s Health and v. Jackson 594 (U.S.), 2021 they can be considered all examples of an emerging (but still not clear) anti-abortion line of case law.

The next and awaited decision of the Supreme Court on the Mississippi abortion law that makes abortion illegal after 15 weeks of pregnancy,  well before the fetus is viable, in conflict with Roe first, could represent an occasion to confirm, or not, the impression that the Supreme Court is quitting holding the legislative attacks on Roe v. Wade back.

*Cristina Luzzi is PhD in Constitutional Law and Research Fellow at University of Pisa