Architect of 'casey' win surveys abortion rights landscape

Architect of 'Casey' Win Surveys AbortionRights Landscape Marcia Coyle, Supreme Court Brief October 29, 2014

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Kathryn Kolbert director of Barnard College’s Athena Center for Leadership StudiesRick Kopstein Texas' tough antiabortion law likely will return to the U.S. Supreme Court this term or next. When it does, there will be "a showdown of the sort we haven't seen in two decades," one abortion rights advocate predicted.

The last showdown took place two decades ago—1992 to be exact—over the high court's 1973 landmark abortion decision, Roe v. Wade. When the justices took up Planned Parenthood of S.E. Pennsylvania v.

Casey in 1992, few expected Roe, establishing a fundamental right to abortion, to survive.

Roe did survive, but a divided court imposed a new standard for determining the validity of restrictions on abortion—one crafted by Justice Sandra Day O'Connor. Under Casey's "undue burden" standard, the court upheld four of five Pennsylvania restrictions on abortion; only a spousal notice requirement failed.

The meaning of her "undue burden" standard lies at the core of legal battles over abortion restrictions adopted by state legislatures during the past four years.

That advocate predicting the Texas showdown was Nancy Northup, president of the Center for Reproductive Rights, which represents Whole Woman's Health clinic in its challenge to the Texas law. Her comment came shortly after a panel of the U.S. Court of Appeals for the Fifth Circuit blocked a district judge's ruling that the Texas law imposed an unconstitutional burden on the right to abortion by requiring clinics to meet ambulatory surgical center standards and clinic physicians to enjoy admitting privileges at local hospitals.

The Supreme Court on Oct. 14 stayed the Fifth Circuit's order and the case will go forward on the merits of the state's appeal to the Fifth Circuit.

The Texas case is not the only one the justices may see during the new year—a number of abortion-related cases are making their way up the pipeline. Arizona is already there; the state recently filed a petition in the high court seeking to overturn a Ninth Circuit decision blocking its restrictions on medication abortions.

It is perhaps both ironic and fitting that the challenge to the Texas law, considered one of the most restrictive in the country, is being asserted by the Center for Reproductive Rights. The center was established in the same year as the Casey decision, and one of its co-founders, Kathryn Kolbert, argued and won the Casey challenge while working for the American Civil Liberties Union.

In his book, The Nine, author Jeffrey Toobin credited Kolbert with devising in Casey "one of the most audacious litigation tactics in Supreme Court history."

With the focus once again on abortion and the high court, Supreme Court Brief caught up with Kolbert, now director of the Athena Center for Leadership Studies, an interdisciplinary center devoted to the theory and practice of women's leadership, at Barnard College in New York. We asked her to look back and forward at the abortion landscape.

SCB: Have you been surprised by the wave of new state restrictions on abortion?

Kolbert: Between '75 and '85, we had a case every year going to the court. But after Casey, in some ways, the court kind of took a break. I had thought things had calmed down somewhat. Not stopped, but abortion wasn't quite as useful a wedge political issue as it had been.

All of the effort had been to force a case to the court so Roe would be overturned. Once the other side no longer had votes to do that, there was less incentive to do those bills. But the 2010 elections really changed the makeup of state legislatures and, all of sudden, the issue became much more important for them.

SCB: As you prepared for Casey, did you believe Roe was in serious danger of being overruled?

Kolbert: Absolutely. We prepared for Casey on the assumption we would lose, 5-4. The entire strategy—from moving it up earlier for argument as quickly as we could so it would be litigated before the presidential election—was totally predicated on our view we did not have the votes to preserve Roe, and we didn't going into the case.

In November, a week after the Clarence Thomas hearings concluded, the Third Circuit issued its opinion.

Normally, you would ask the justices for an extension before filing a cert petition or at least take your full 90 days. We filed within about two weeks.

We wanted the case argued in the spring. If we were going to lose, we needed it to become an issue in the presidential and congressional elections so we could win back some of the rights in Congress.

We had to decide: Do you try to preserve the right for another year and see it fold incrementally across the circuits, or do you go for the whole ball of wax in order to restore it in the legislative arena? My clients decided it was important to give us the best chance of winning politically if we were going to lose in the courts. It was a very difficult decision.

I think it was the right decision, and the political pressure that mounted in that time frame was key to the court taking the issue seriously and how it affected individual women. Frankly I was surprised as much as the next person at how much we were able to preserve.

SCB: You surprised many court watchers when you opened your argument in Casey with a vigorous defense of Roe instead of focusing on the Pennsylvania restrictions being challenged. And when Justice O'Connor, in her typically steely manner, asked as the first question when you would address the merits, you essentially told her to wait.

Kolbert: I said the merits depend on the standard. She didn't like that answer but, in fact, that was true. We're now seeing the implications of that.

SCB: When the Casey decision was issued and Roe was reaffirmed, you celebrated that victory but you were among the few abortion rights advocates who immediately saw that the victory came with a price.

Kolbert: My initial comments were very much about the fact the court had blown a hole in the standard [for judging abortion restrictions] big enough to drive a Mack truck through. I really did think that with the loss of strict scrutiny over the long term, we would see a whittling away of the right. That happened. Now we're seeing much more aggressive efforts to undermine the right.

SCB: The Casey standard says a state "may not impose upon this right [to an abortion] an undue burden, which exists if a regulation's 'purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.' " Why were you worried about this standard?

Kolbert: The problem with this kind of standard is that legislative enactments of the type we're seeing are cumulative. It is one thing to say it is okay to have a requirement that doctors have to provide certain information, but that is coupled with waiting period laws, restrictions on funding, ambulatory surgery restrictions like this one in Texas. And you add doctor hospital-privilege statutes and all the other things we've seen over the years.

The people who are most affected are those far away from clinics and outside major geographical areas. And poor women and young women, because they have the least ability to afford multiple trips and the higher costs all these restrictions do. To me, the irony of all this is if these same legislators had their way, they would just ban abortion. They are doing everything they can to get as close to that as possible.

SCB: Courts have differed in their application of the undue-burden standard to identical or very similar abortion restrictions. Is the standard unclear?

Kolbert: The term “undue burden” had been used by O'Connor in other cases, but the Caseystandard was much more protective in a variety of ways. But over the years, it has been ignored.

The court talked about the purpose and effect: It gave you an opportunity to challenge the motivation of these laws. You can look at legislative history, actual effect, the language of supporters—the same way you would look at a purpose standard in other contexts. That was new to abortion.

Second, it gave an opportunity to look at just who the law affected, not the whole class of women in the state.

We had in Casey a challenge to the husband-notification requirement. The evidence in the case was that most married women already talked to husbands—over 90 percent. In Casey, by looking at the cases for whom the statute actually applied, you're looking at a small number of people—married women who don't want to talk to their husbands about an abortion; women who had been beaten or were in very adverse circumstances— miniscule numbers. The court said, we're going to look at those. That I think is really the difficulty with what the Fifth Circuit has done. They basically say we need to look at everybody—not what the Supreme Court did in Casey.

The third important element is a very close association between the purported goal of the statute, or the state's interests, and the effect. They expanded the purposes but never shied away from what the effect would be.

SCB: If Nancy Northup is correct that the Texas case is destined for the Supreme Court, what do you see happening?

Kolbert: Frankly, this is all about Kennedy. Justice Kennedy was a clear supporter of the undue-burden test.

His opinion was surprising to us but very, very important. I think the hard part of all of these cases is to get judges to see the real people behind what is presumably a democratic process in enacting the law.

Unfortunately, with this court we too often see them shy away from that process. They don't want to look at who is tangibly affected.

Interestingly, in the gay rights context, Kennedy was able to see that—to see behind the law and look at the personal effect. That's what's going to be required in this case. The fact that so many clinics are closing and so many women are affected makes this an easier argument.

SCB: Do you see any parallels in the abortion struggle with the racial struggle in this country?

Kolbert: Here's the problem: Both race and gender are based on historical stereotypes that have lasted for generations and generations. Obviously, the experience of coming to a country against your will is a hardship hard to imagine could be much worse. Similarly, women have had a long and historic plight of not being recognized as full citizens. We've made incredible progress. But at the heart of gender disparities are stereotypes about what women should be doing with their lives. And the biggest stereotype is women should be mothers. Our fight for equality has to address that women must be able to make decisions about whether to be a parent.

So interesting to me is the incredible vast progress we made on gay marriage, in comparison. There are probably reasons for that, but I think judges can understand marriage but they can't understand women.

I used to say, this isn't really about abortion, which is probably one of the safest medical procedures in the world. If it were, it would have been resolved a long time ago. It's really about equality. And, because it's about that, it's going to take longer. The struggle for equality is a long and historic one.

SCB: You litigated many cases in your career and argued twice in the Supreme Court. Do you miss litigating?

Kolbert: Sometimes I miss it. I miss the strategic part of it. I spent most of my time as a lawyer in state legislatures, and I miss that. Strategically, it's lots of fun. In the two years after Webster [v. Reproductive Health Services, (1989)], I think I was in 44 states. In those days, about 800 bills were introduced and we pretty much killed most of them.

Contact Marcia Coyle at mcoyle@alm.com.

Read more: http://www.nationallawjournal.com/supremecourtbrief/id=1202674993215/Architect-of-CaseyWin-Surveys-AbortionRights-Landscape#ixzz3Hf42EtrW