Substantial Uncertainty: Whole Woman’s Health v Hellerstedt and the Future of Abortion Law
Commentators have heralded the Supreme Court’s most recent abortion decision as the most significant in decades.1 By a vote of five to three in Whole Woman’s Health v Hellerstedt, the Court struck down two key provisions of a Texas statute known as HB2.2 One of the disputed provisions required physicians performing abortions to have admitting privileges at a hospital within thirty miles. Another mandated that all abortion clinics comply with state regulations governing ambulatory surgical centers (ASCs). HB2 promised to revolutionize abortion access in Texas, because compliance with the law was expensive or even impossible for most providers in the state. After it was allowed to go into effect, the admitting-privileges provision had forced nearly twenty clinics to close. Had Texas enforced the ASC provision, at least another ten seemed likely to shutter.3
By striking down the law, the Court’s decision will likely expand abortion access in Texas and set the stage for the invalidation of laws like HB2 in other states. Perhaps more importantly, Whole Woman’s Health also put teeth in the undue-burden test first announced in Planned Parenthood v Casey.4 The Court held that Casey required consideration of both the benefits and the burdens created by a law regulating abortion and demanded meaningful proof that a law claiming to protect women’s health actually did so.5
Whole Woman’s Health defied the expectations of those who believed that the Court would further narrow abortion rights. After the 2007 decision in Gonzales v Carhart,6 many in the antiabortion movement believed that the Court would look favorably on additional restrictions and might even clarify that all abortion laws should receive only rational-basis review. For these activists, Whole Woman’s Health was obviously a profound disappointment.7 But Whole Woman’s Health could provide far less reliable protection for abortion rights than might appear, especially when one considers the strategies that abortion opponents have used. While refusing to take at face value the claim that abortion procedures, providers, and clinics hurt women, Whole Woman’s Health set the stage for fact-intensive litigation about the benefits and burdens of measures restricting access to abortion.
This is not the first time that the Court, intentionally or not, has invited a war about the facts. Over the past three decades, antiabortion activists have developed a strategy based on the idea that abortion harms women psychologically and physically. When this argument debuted in the Court in the early 1980s, pro-lifers failed because they did not have credible enough evidence for their assertions. Over time, movement leaders turned to a different tactic. Rather than trying to establish that women did in fact suffer trauma as a result of abortion, pro-lifers argued that research on the issue was inconclusive. Given the potential risks women faced, scientific uncertainty became a key political and even constitutional justification for abortion restrictions. In Gonzales v Carhart, this strategy paid off, notwithstanding the fact that the evidence supporting postabortion trauma was no stronger than it had been in previous decades.
This history shows that Whole Woman’s Health may promise less than it seems. The Court’s decision requires more convincing evidence to justify abortion restrictions but offers little guidance about how much (or how good) the proof must be before lawmakers can regulate. Whole Woman’s Health also gives courts little guidance on how to deal with claims of scientific uncertainty, which have been a warrant for abortion restrictions in the past. The influence of Whole Woman’s Health on politics or constitutional litigation will be anything but easy to foresee.
Part I of this article traces the evolution of antiabortion arguments involving women’s health. Part II uses this history to put the Whole Woman’s Health litigation in broader context, exploring the origins and tactical value of the regulations at issue in the case. Part III returns to the reasoning of Whole Woman’s Health, and, drawing on the development of arguments about scientific uncertainty, suggests that the influence of the decision may not be as sweeping or as certain as many commentators have proclaimed. Part IV briefly concludes.
I. Evolution of Arguments
Whole Woman’s Health in some ways became a referendum on a constitutional strategy antiabortion attorneys have honed for decades, one centered on the idea that abortion hurts women. As early as the 1970s, abortion opponents wove this idea into several independent legislative campaigns. In particular, movement members lobbied for mandated-consent laws and waiting periods as well as onerous targeted regulation of abortion providers (“TRAP” laws).
At first, antiabortion organizations used these trauma arguments to claim that some abortion restrictions passed muster under Roe v Wade8 because they benefited, rather than burdened, women. But in 1983, in City of Akron v Akron Center for Reproductive Health (Akron I),9 the Court struck down an informed-consent law on which activists had pinned their hopes. The law had required women to hear information about the physical and psychological consequences of abortion. In invalidating the disputed provision, the Court emphasized that there was little or no evidence for the harms to women detailed in the statute.
But instead of putting an end to woman-protective arguments, Akron I intensified the movement’s efforts. If pro-lifers could not prove that abortion hurt women, activists planned to create enough doubt to convince the legislatures and the courts.
Initially—as early as the 1960s—activists in organizations like National Right to Life Committee (NRLC) and Americans United for Life (AUL) had prioritized a right to life and equal treatment for fetal life that advocates identified with the Declaration of Independence and the Fourteenth Amendment. Abortion opponents argued that the unborn child was a person within the meaning of the Constitution. If unborn children were persons, abortion represented a deprivation of life without due process of law. Movement members also insisted that abortion constituted an act of discrimination against the unborn child under the Equal Protection Clause. When making these claims, pro-lifers explicitly identified their agenda with other efforts to protect embattled minorities, including people of color, women, and the poor. In the early 1970s, AUL’s Declaration of Purpose repeated the movement’s claims about equal treatment, committing “to impress upon all the dignity and worth of each individual life, whatever the state or circumstance, especially the innocent, the incompetent, the impaired, the impoverished, the aged, and all others who are weak and disadvantaged.”10
Roe devastated the pro-life movement. Many activists had hoped that the Court might recognize a right to life rather than a right to abortion. In spite of their dismay, most movement members did not discard the arguments promoted before 1973. Instead, immediately after Roe, antiabortion organizations campaigned for a federal constitutional amendment that would restore what abortion opponents believed were the protections that the Court had destroyed. In February 1973, for example, NRLC hosted a strategy meeting to craft a response to Roe. By the time of the gathering, most states had held local meetings about how to draft an ideal constitutional amendment. While activists at the strategy meeting discussed statutes that would restrict abortion access, these incremental attacks seemed at most to be “a back pocket option.”11
In 1975–76, two congressional subcommittees held hearings on antiabortion amendments. In 1976, Senator Jesse Helms (R-NC) moved for the full Senate to consider a personhood amendment, but the Senate tabled his motion. In 1977, after a full week of hearings, no serious step was taken to bring any amendment up for a vote.12
Convinced that it would be impossible to change the text of the Constitution, abortion opponents became desperate for an alternative. First, many considered the idea of a constitutional convention. By 1977, nine states had passed legislation calling for a convention, but many believed that there was no longer any chance for formal constitutional change. Even NRLC no longer seemed convinced that a federal constitutional solution was possible. The group’s board of directors unanimously passed a resolution rejecting the call for a constitutional convention. Later, after the election of Ronald Reagan, some believed that a constitutional amendment might be within reach. But divisions within the movement doomed both a proposed statute and a constitutional amendment that would have gutted Roe. Forced to give up on a constitutional solution for the time being, movement leaders developed the pieces of an incremental litigation strategy that would later come together in Whole Woman’s Health.13
These strategists argued that the movement should focus on introducing legislation that the Supreme Court might uphold. If pro-lifers could successfully defend these laws in the courts, then Roe would mean very little, even if the Supreme Court never overruled it. The best-known triumph of early pro-life incrementalism was the Hyde Amendment, a federal ban on the use of Medicaid funds for abortion. The decisions handed down by the Court in the mid-1970s also fueled antiabortion interest in both mandatory-consent laws and undue-burden reasoning.14
The movement had reason to focus on mandated-consent laws after the Court’s 1976 decision in Planned Parenthood of Central Missouri v Danforth.15 That case involved a multirestriction Missouri statute requiring everything from informed consent to parental involvement. When Danforth came down, the Court defied expectations by upholding part of the Missouri law—a provision that required a woman to certify in writing that her decision to terminate a pregnancy had been informed. The Court upheld the regulation even though Missouri did not require similar consent for any other surgical procedure. “The decision to abort, indeed, is an important and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences,” Justice Blackmun wrote.16 “The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.”17
The Court’s early decisions on abortion funding also gave pro-lifers a potential vehicle for their constitutional claims. In Maher v Roe,18 Poelker v Doe,19 and Beal v Doe,20 the Court upheld a variety of local laws on the use of public facilities and funding for abortion, but the language of Maher particularly intrigued abortion opponents. The Maher Court distinguished the challenged Connecticut statute, which denied Medicaid funding for abortion, from the Texas abortion ban struck down in Roe v Wade, explaining that there was no absolute constitutional bar to abortion regulations. “[T]he right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,” the Maher Court explained.21 “It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.”22 In the context of poor women, the Court held that poverty stemmed not from anything that the government had done but from broader political, economic, and legal forces, and the government had no obligation to fund abortions.
For abortion opponents, Maher raised interesting new constitutional possibilities. The Court suggested that some abortion restrictions would be constitutional. Movement lawyers also saw the seeds of an alternative to strict scrutiny. Maher had singled out only those abortion regulations that were “unduly burdensome.”23 Two years later, in a case involving minors’ abortion rights, the Court held that parental-involvement laws would be unconstitutional only if they created an undue burden on minors’ rights.24 These decisions convinced some abortion opponents that the undue-burden test protected abortion far less than whatever standard applied in Roe. In the years to come, movement leaders set out to convince the Court to apply undue-burden analysis to every case.
A. Experiments with Woman-Protective Arguments Begin
The first major political use of woman-protective arguments came as pro-lifers promoted the undue-burden analysis. After an initial failed attempt, local antiabortion activists again asked the Akron, Ohio, city council to pass a comprehensive antiabortion ordinance. Local organizers created an independent group, Citizens for Informed Consent, to promote a new strategy that would take advantage of the opening created by Danforth and Maher. Movement members hoped that the ordinance would provide information geared toward discouraging women from having abortions. Better yet, the law would create a platform for pro-lifers to try the same arguments before the courts and the nation. Jane Hubbard, the president of Akron Right to Life, insisted that the law’s aim was “to ensure that a woman who decides to abort her child will have … scientifically and medically accurate information: that the child she aborts is alive and growing, and the procedure may cause her physical or psychological harm.”25 Martin Weinberger, the leader of Citizens for Informed Consent, reinforced this point. “All we are giving them is the biological facts,” he asserted.26
The woman-protective strategy used in Akron reached back to the years before the Roe decision and continued to circulate in pro-life organizations in the early 1980s. In the 1960s, when Colorado and other states introduced reform laws based on the American Law Institute (ALI) model, groups like Planned Parenthood insisted that forcing a woman to carry an unwanted pregnancy to term would cause psychological distress, mental illness, and even suicidal ideation. Physicians opposed to abortion responded that abortion itself caused regret, distress, and depression. In an AUL brief submitted on behalf of antiabortion medical professionals, similar arguments featured prominently. In 1981, Vincent Rue, a psychologist and the director of the Sir Thomas More Clinics of Southern California, testified before Congress on the psychological consequences of abortion. “It is superfluous to ask whether patients experience guilt,” he stated. “[I]t is axiomatic that they will.”27
The Akron ordinance presented arguments about the negative effect of abortion on women as scientific fact. The law required physicians to recite the following statement:
[A]bortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies; and … abortion may leave essentially unaffected or may worsen any existing psychological problems [a woman] may have, and can result in severe emotional disturbances.28
Just as would be the case years later in the lead-up to Whole Woman’s Health, the Akron ordinance prompted a major fact-gathering effort on the part of abortion-rights supporters. Recognizing that pro-lifers planned to use the statute as a “national precedent,” Swain told Jane Hodgson, a Minnesota obstetrician-gynecologist and leading figure in the movement, that the ordinance would “severely limit the availability of abortion as well as psychologically intimidate women.”30
Hodgson played a prominent part in building the record used to challenge the Akron law. In her testimony before the city council, she focused on the inaccuracy of the information women had to hear, labeling the proposed ordinance “medically unnecessary.”31 Item by item, she tried to refute the factual arguments supporting the ordinance. “Psychological studies have failed to show any more effects from abortion such as depression and suicide than would occur from compulsory child bearing,” she asserted.32 Hodgson also offered advice to lawmakers on how to separate real from phony evidence. She advised council members to rely on organizations of experts, like the American Public Health Association, in determining where the truth lay.33
The city council nevertheless passed the ordinance, and other cities and states rushed to pass similar ordinances. By 1979, eleven states had done so. Faye Wattleton of the Planned Parenthood Federation of America branded these laws “an attempt to promote political ideology in the guise of a health regulation.”34
The threat to abortion access posed by the Akron ordinance and others like it was clear. The ordinance required not only the recitation of certain supposed facts but also mandated that all abortions during or after the second trimester had to be performed in hospitals. If widely adopted, hospital restrictions promised to eliminate most abortion access, much like the law considered in Whole Woman’s Health would have forced the closure of most clinics in Texas. In 1973, more than half of all abortions took place in hospitals, but with the advent of new techniques, most abortions could be safely performed in freestanding clinics, and political pressure discouraged hospitals from offering abortion services. By 1980, only 22 percent of abortions happened in hospitals, and the number continued to decline. Roy Lucas, one of the attorneys to litigate Roe, wrote his colleagues that “[t]he worst outcome in 1983 could be a decision allowing extensive overregulation of abortion clinics and banning second trimester abortions except in a few hospitals.”35
Pro-lifers used the Akron case to push the undue-burden standard as an alternative to heightened scrutiny. Working with the Reagan administration and AUL attorneys, the city of Akron offered the Court a different way of thinking about abortion doctrine. “The initial question posed on review before this Court,” the city’s brief explained, “is whether the state’s interest in maternal health and wellbeing is such that it may regulate abortion in a reasonable manner which is not unduly burdensome, even during the first trimester of pregnancy.”36 Movement lawyers argued that the undue-burden test applied to any abortion restriction, not just those involving minors or funding. As importantly, pro-lifers hoped that the undue-burden test would be a vehicle for claims about the facts, particularly those concerning women and abortion. “In Roe v. Wade and Doe v. Bolton, the Court prohibited the state from regulating doctors only in ways which burden the woman’s fundamental right to decide,” explained AUL attorney Dolores Horan in a brief for Feminists for Life.37 “It is impossible for the state to burden the woman’s right to decide by requiring that she be given factual information which, in fact, enhances her ability to decide.”38
Antiabortion briefs spotlighted the woman-protective factual arguments that would become a staple of movement advocacy in the years to come. At trial, movement attorneys tried to establish the “unborn child’s sensitivity to pain”39 and emphasized that women did not understand what abortion involved or how much an unborn child had developed. In making this argument, Feminists for Life highlighted affidavits collected from individual women who regretted their abortions. According to the brief, “[w]omen could be spared the severe guilt and trauma [that] they will later experience upon discovering [the] information” detailed in the statute.40 By relying on these factual assertions, AUL and other pro-life groups insisted that the Court could find an undue burden only if an abortion restriction harmed women.41
During trial and in amicus briefs, pro-choice groups built a convincing factual case against the ordinance. Expert witnesses testified that abortion involved few serious risks, particularly in the first trimester, which was when most women terminated their pregnancies. Briefs highlighted peer-reviewed studies, data from the Centers for Disease Control, and expert testimony on the limited risk of complications following abortion. According to pro-choice amici, emotional trauma following abortion was rare and often resulted from preexisting personal or psychological difficulties. These briefs insisted that the state had no legitimate interest in forcing women to listen to information that was “medically irrelevant, false, and/or harmful to the patient.”42 An amicus curiae brief submitted by NARAL and the American Public Health Association similarly pointed to statistics from the Centers for Disease Control, physician testimony, and peer-reviewed scholarship to establish that the mandated-consent provision was “especially burdensome.”43
As would be the case later in Whole Woman’s Health, the pro-choice effort to prove the inaccuracy and impact of the Akron ordinance paid dividends. The Supreme Court in Akron I struck down the entire ordinance by a vote of six to three. While holding that Akron could not prove that abortion was dangerous, the majority also rejected any suggestion that the undue-burden standard differed from heightened scrutiny.44
The Court’s analysis of the mandated-consent provision was particularly revealing. After expressing concern about the “straitjacket” the law forced on physicians, the Court concluded that women could not benefit from hearing highly questionable information. Parts of the law, like a measure stating that human life began at conception, struck the Court as a way of deterring women from terminating their pregnancies. Mostly, however, the law troubled the Court because the information it detailed was “speculative” and factually “dubious.”45 The Court particularly took issue with the description of abortion’s impact on women. The law’s list of complications struck the Court as nothing more than a “‘parade of horribles’ intended to suggest that abortion is a particularly dangerous procedure.”46
Justice O’Connor, in her dissenting opinion, framed the undue-burden test—and the potential risk of abortion for women—in a very different light. Because Justice O’Connor was President Ronald Reagan’s first nominee to the Court, commentators closely read her dissent to see if she, like Reagan, believed that Roe was not good law. Writing for three other Justices, Justice O’Connor rejected Roe’s trimester framework as factually flawed because it depended on medical technology and best practices that would change over time. As an alternative, she urged that all regulations be subject to a less protective undue-burden test. She suggested that courts would find an undue burden “for the most part in situations involving absolute obstacles or severe limitations on the abortion decision.”47 Justice O’Connor also seemed open to arguments involving women’s health. “[J]ust because the State has a compelling interest in ensuring maternal safety once an abortion may be more dangerous,” Justice O’Connor wrote, “it simply does not follow that the State has no interest before that point that justifies state regulation to ensure that first-trimester abortions are performed as safely as possible.”48
B. Pro-Lifers Rethink Their Strategy in the Wake of Akron I
Because Akron I had undone what seemed to be the most promising model antiabortion ordinance, it would have been no surprise for pro-lifers to abandon the woman-protective strategy that the Court had so firmly rejected. And at least at first, it seemed that movement members had scaled back their expectations considerably. At the NRLC convention in August 1983, General Counsel James Bopp, Jr. and Maura Quinlan of AUL held a closed-door meeting with state lawmakers to discuss the possibilities that remained open after the Court’s decision. Rather than discussing woman-protective strategies, attendees discussed legislation barring suits for wrongful life or wrongful birth and laws that would bar insurance coverage for abortion or deny hospital admitting privileges to any doctor performing abortions.49
Nonetheless, Akron I created a platform for AUL attorneys convinced that woman-protective strategies could still be used to limit abortion access. The winter following Akron I, the organization held a conference “to unite the movement around the relatively uncontroversial proposition … that the Court should reverse itself.”50 Those assembled saw the most immediate promise in destabilizing the idea of fetal viability. Justice O’Connor’s dissent had flagged the issue as one of the weaknesses of Roe’s trimester framework, and those at the AUL conference hoped to capitalize on it.51
AUL attorneys also hoped, however, to revive the woman-protective arguments that the Akron I majority had found unconvincing. Movement leaders argued for the creation of research organizations that could collect proof that abortion hurt women and convince key decision makers, particularly politicians, that legal abortion did more harm than good. Victor Rosenblum and Thomas Marzen of AUL claimed that the movement might have more success promoting laws that supposedly benefited women if pro-lifers could popularize enough “[f]avorable statistical data.”52 As the two explained:
“Accepted medical practices” must change before barriers to reversal can be broken down; whether or not abortion is “acceptable” is determined by the view and customary practices of the very people who perform abortions. They are unwilling to increase the state’s authority to regulate abortion. A possible long-term approach to meeting this dilemma is the development of new sources for abortion data.53
At first, supporters of abortion rights did not always understand the threat posed by the factual claims abortion opponents continued to make. Indeed, some believed that the undue-burden standard embraced by the Akron I majority had put questionable factual claims off limits. Janet Benshoof of the ACLU Reproductive Freedom Project believed that the Court’s idea of an undue burden required heightened scrutiny. She said that under Akron I, “a state may enact some regulations ‘touching’ on a woman’s abortion right in the first trimester so long as the regulations have ‘no significant impact’ and so long as they are justified by important health objectives.”54
Benshoof suggested that the movement could work with the majority’s idea of an undue burden by bringing forward more evidence of the real-world impact of restrictions on abortion access. After all, the Court had been receptive to pro-choice testimony on medical realities and access. Benshoof concluded that “[a]ny first trimester regulation which can be shown to impose a burden on the exercise of the abortion right [should be] invalid.”55
By contrast, NARAL leaders believed that if the Court focused on the facts, abortion rights would not be safe unless Republicans were no longer putting Justices on the Court. Akron I only solidified this strategy, inspiring a campaign called “40 More Years?.” NARAL lawyers wrote Executive Director Nanette Falkenberg that Roe had required strict judicial scrutiny for abortion regulations, whereas the undue-burden standard would allow laws that would create “substantial delay, cost, and/or emotional suffering.”56 NARAL members concluded that the only way for the movement to protect abortion rights was to ensure that another O’Connor never joined the Supreme Court.57
The events of the next several years legitimized NARAL’s concerns about what could go wrong in a war about the facts. Abortion opponents experimented with questionable factual claims in promoting a film, The Silent Scream, supposedly depicting fetal suffering during an abortion. Produced by Crusade for Life, an antiabortion group, the film narrated the suction abortion of a twelve-week-old fetus. With a voiceover by former NARAL leader Bernard Nathanson, the film claimed to depict “a child’s mouth open in a silent scream”—evidence that unborn children supposedly felt pain early in pregnancy.58
While The Silent Scream traded in familiar pro-life images and arguments, the film attracted unprecedented attention, with screenings on high school and college campuses across the nation and an endorsement from President Reagan. The waves made by the film seemed puzzling to those aware that the factual premises of the film had come into question. Dr. James Hobbins of Yale Medical School told viewers of the CBS Morning Show that unborn children at twelve weeks could not feel pain or move with purpose, and any description to the contrary was inaccurate. Indeed, the American Medical Association’s Council on Scientific Affairs condemned the film and a pro-choice response to it as “designed to solicit emotional reactions rather than to clarify scientific issues.”59 Feminists echoed these arguments about the facts. Judy Goldsmith of the National Organization for Women (NOW) emphasized that while The Silent Scream suggested that an unborn child suffered pain and fought abortion, “embryologists say that neural pathways are not developed until the 24th week.”60
Pro-lifers responded to questions about the film’s accuracy by arguing for fetal-protective policies in the face of scientific uncertainty. Movement leaders cited a 1980 article in the British Medical Journal and a handful of other sources suggesting that the fetus might feel pain. Bernard Nathanson, the narrator of The Silent Scream, insisted that Americans responded to the film because “the accumulating scientific evidence … finally won them over.”61 Even if the movement could not eliminate any doubt about the accuracy of the film, uncertainty militated in favor of protecting life. As one op-ed put it, “[w]e can’t know what the fetus feels because it can’t tell us.”62
The Silent Scream forced feminists to recognize that they could lose a war about the facts even if medical evidence seemed to be on their side. In a February letter to Judy Goldsmith, Nanette Falkenberg wondered how activists could overcome the “sense of powerlessness and frustration among our supporters and other pro-choice individuals.”63 Falkenberg recognized that The Silent Scream had relied on factual claims to connect emotionally with viewers, many of whom did not seem concerned with the accuracy of the film. As Falkenberg explained, the pro-choice movement could make progress only if it “recapture[d] the emotional side of the issue.”64
Feminists faced a similar problem when dealing with increasingly prominent arguments about postabortion trauma. New support groups, including Project Rachel, a Catholic organization, and Women Exploited by Abortion (WEBA), spread this reasoning, sharing the experiences of women who believed their abortions to be a mistake.65
C. Uncertainty Emerges as Part of a Plan of Attack
In the mid-1980s, psychologist David Reardon collected the stories of WEBA veterans and published Aborted Women: Silent No More (1987). Although his strategy initially received a mixed reception from mainstream antiabortion groups, Reardon’s plan closely resembled the one described by AUL lawyers earlier in the 1980s: movement leaders tried to collect enough evidence to generate scientific uncertainty. Reardon made the emotional case for limiting abortion: if abortion might hurt women, then states should have the power to regulate it until researchers could rule out a serious risk to women’s health. “[T]he American ‘experiment’ with abortion has yet to gain any comprehensive data,” Reardon argued. “The abortion industry has everything to gain by withholding data, and nothing to lose.”66
As Reardon’s arguments spread more widely within the antiabortion movement, his idea of uncertainty soon received a hearing at the highest political levels. Reagan’s advisors Dinesh D’Souza and Gary Bauer asked C. Everett Koop, the surgeon general, to issue a report concluding that abortion traumatized women. As early as 1987, Reardon wrote to Koop, presenting his upcoming report as an opportunity to “launch [the] nation into a new era of debate, one based not on fetus versus woman rhetoric, but rather on the facts of what abortion does to women alone.”67 Reardon also reassured Koop that the state of the evidence should be no obstacle to his plan of attack. What mattered was that abortion opponents created enough uncertainty to make a “prima facie case for restricting abortion on public health grounds.”68
By July 1988, Reardon had heard that Koop was worried that there was not enough proof of postabortion trauma for any firm conclusions to be drawn. In correspondence with Koop, Reardon emphasized that pro-lifers needed only to show a lack of certainty, not to establish convincing proof themselves. Reardon acknowledged: “there is insufficient data to project any sort of figure as to how many women are suffering from Post-Abortion Syndrome.”69 However, as Reardon saw it, “[t]he mere potential for such a problem … is a potent argument for expanding our efforts to understand the aftereffects of abortion.”70
Reardon’s arguments ultimately failed to convince Koop. In a 1989 letter that leaked to the press, Koop told Reagan that “the available scientific evidence about the psychological sequelae of abortion simply cannot support the pre-conceived beliefs of those who are pro-life or pro-choice.”71 By the time Koop had made his statement, both allies in the White House and members of the Court had found the evidence of postabortion harm wanting.72
Any celebration for pro-choice groups was, however, premature. Reardon’s focus on uncertainty increasingly caught the broader movement’s attention. Still primarily committed to arguments involving fetal rights, organizations like AUL and NRLC did not initially sponsor the kind of research that Reardon recommended. Instead of gathering evidence, movement members relied on testimonials like those that Reardon had gathered. Meanwhile, researchers affiliated with the movement published studies suggesting that abortion caused trauma, stress, breast cancer, and suicidal ideation. Antiabortion activists contended that even if the risks of abortion could not be conclusively proven, women’s personal experiences made abortion restrictions a necessary precaution.
Abortion opponents in the late 1980s and early 1990s faced a series of difficulties: the election of Bill Clinton, a pro-choice president, the radicalization of the clinic-blockade movement, and the murder of several abortion providers and clinic staff. While these circumstances convinced abortion opponents to change their argumentative strategy, movement leaders initially focused more on sharpening woman-protective arguments than on gathering evidence of the effects of abortion. Emphasizing woman-protective arguments made sense at a time when the movement wanted to rehabilitate its image. At an AUL conference for state legislators, Laurie Ann Ramsey summarized the results of market research on the image of the antiabortion movement: “[W]e are also seen as extremist … , violent, intolerant, and unconcerned about women, the homeless, and the poor.”73 “The [movement’s] focus on the unborn child neglects … the mother,” Mary Ellen Jensen, a public-relations specialist at AUL, explained at the time.74 “Communicating greater concern for the woman … must be one of the objectives.”75
Between 1990 and 1997, pro-life groups also began sponsoring research on the supposed risks of abortion. Starting in 1986, Marquette began hosting annual conferences on postabortion trauma. By the 1990s, pro-life groups also promoted published studies purportedly documenting a link to suicidal ideation, postabortion trauma, or breast cancer. Nevertheless, antiabortion organizations did not try to match the evidence-gathering capabilities of major pro-choice organizations like the Guttmacher Institute. Nor did antiabortion groups court donors as effectively. Pro-choice research organizations attracted major support from the Buffett, Hewlett, and Packard Foundations, among others. Until the founding of the Charlotte Lozier Institute in 2011, pro-life organizers did not channel significant resources to research initiatives of their own.76
Instead, for the most part, antiabortion organizations emphasized that existing research was incomplete, biased, or open to interpretation. When the American Psychological Association commissioned a study on the subject and found that postabortion trauma was rare, Vincent Rue argued that the study was incomplete and biased. “People who are in favor of abortion in this country are very uninclined to acknowledge [the] existence” of postabortion trauma, he stated.77 In 1997, when another study replicated these results, antiabortion researchers like Reardon and Wanda Franz questioned the methodology and factual foundation of the research. Reardon maintained that researchers had ignored the unique symptomatology of postabortion trauma. Franz faulted the study for missing “a large body of data on post-abortion trauma.”78 The two repeated what had become common movement arguments that existing studies were incomplete.79
When the Court heard Planned Parenthood v Casey, pro-life amici relied on a similar claim. Rather than arguing that the facts of the matter were beyond question, amici presented the very possibility of postabortion trauma as a justification for abortion restrictions. Whereas the Akron I petitioners had presented abortion risks and complications as facts, the Casey briefs suggested that the questions remained too open to expose women to the risk of harm. The Rutherford Foundation described Pennsylvania’s spousal-notification provision as a necessary protection for women against the possibility of postabortion regret. The conservative National Legal Foundation also drew on Rue’s testimony at trial to claim that the Pennsylvania informed-consent law would prevent postabortion regret.80
The evidentiary foundation for these arguments was no stronger than it had been when Akron passed its ordinance. Pennsylvania had relied almost exclusively on Dr. Rue’s testimony in supporting several provisions of the statute, but the trial court had not found Rue to be credible, citing his potential bias, his lack of experience with informed-consent procedures, and his “lack … of academic qualifications and scientific credentials.”81 Nevertheless, the Casey plurality responded to the possibility that women could suffer regret after an abortion:
It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.82
Casey energized abortion opponents who hoped to use the same scientific-uncertainty argument to convince state legislators. Paige Cunningham of AUL announced “a major rhetorical shift” in the organization’s agenda, one focused on “right to know laws” patterned on Casey.84 “We must help people understand that abortion hurts women too,” she insisted.85 By the fall of 1993, the organization had announced a major fifteen-year plan. “Our first goal is to shatter the myth that abortion helps women,” the framers of the plan explained.86 Right-to-know laws were a stirring success. By 2013, twenty-two states had introduced such statutes. The questionable evidence of postabortion regret did nothing to slow the momentum of related laws in the courts or the legislatures.87
By 2007, the potential impact of uncertainty claims on the Supreme Court was obvious. In Gonzales v Carhart, the Court, in upholding the so-called Partial Birth Abortion Ban Act of 2003, relied heavily on a brief emphasizing affidavits collected by Operation Outcry, a group closely associated with WEBA and Reardon.88 That brief stressed the testimony of women who believed that they had experienced postabortion trauma, state legislative findings, and expert testimony by Dr. Rue.89 Carhart acknowledged that the evidentiary foundation for postabortion trauma syndrome was weak,90 but anecdotal evidence or even common sense was enough to persuade the Court that women regretted abortions, regardless of convincing medical proof to the contrary. “It is self-evident,” the Court reasoned, “that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns … that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child.”91
II. Broader Context
The activists behind Texas’s HB2, like the lawyers involved in the litigation of Carhart and Casey, relied on claims that abortion hurt women and tried to turn scientific uncertainty to their advantage. The regulations at issue in Whole Woman’s Health themselves had a long history. In the 1970s, movement leaders had first called for laws requiring all later-term abortions to be performed in hospitals. By the early 1980s, as facilities responded to individual practitioners or committees afraid that hospitals performing abortions would damage their reputations, few hospitals performed abortions. As hospitals began to merge and Catholic hospitals took over a larger share of the market, the difficulty of finding a hospital willing to perform the procedure grew. Requiring women to have abortions in hospitals seemed likely to put the procedure off limits for many women.92
In the same period, movement members experimented with laws that would indirectly achieve the same result as the hospital requirements. In 1977, in Cocoa Beach, Florida, James Bopp, Jr. of the NRLC represented a city council that had passed a law requiring the only abortion clinic in town to comply with state regulations governing ambulatory surgical centers. Pro-lifers contended that these regulations advanced the state’s interest in protecting women’s health—a governmental purpose explicitly recognized by Roe. Although the courts often struck down these laws, emphasizing that they singled out abortion clinics, incrementalists refused to give up on a court-centered strategy. “We must not … consider ignoring the courts in our effort to seek protection for the unborn,” AUL explained in 1978.93 “To do so would disenfranchise the pro-life voter because all significant legislation is, and will continue to be, challenged by our opponents in the courts.”94
In the mid-1980s, AUL introduced a major initiative to pass TRAP laws like the one at issue in Whole Woman’s Health. After a 1978 exposé by the Chicago Sun Times on the state’s abortion industry, the organization focused its efforts on Illinois. The Sun Times had reported on unsterile, dangerous, dishonest, and unprincipled practices at four Chicagoland clinics, and in 1982, at the urging of the pro-life movement, the state introduced a TRAP law. In the decades to come, pro-lifers would renew the push for similar laws when clinic scandals emerged in other states and cities.95
When providers challenged the Illinois regulations in 1989, pro-life incrementalists celebrated. The leader of the Illinois Right to Life Committee, a NRLC state affiliate, explained: “We want the Court to have as many opportunities as possible to look at Roe vs. Wade to overturn it or chip away at it some more.”96 Paige Cunningham, a leader of AUL, presented the state’s regulations as a necessary means of protecting women from abortion. Not only did the law not create an undue burden; the Illinois measure was needed to keep women safe from “unqualified physicians, unsanitary conditions or debilitating injury.”97
The Illinois litigation was settled and never reached the Supreme Court, but pro-lifers continued to make regulation of clinics a part of a broader woman-protective strategy. In 1999, for example, South Carolina adopted a law requiring the licensure of clinics that performed more than a threshold number of abortions and mandated that the state health department promulgate regulations to govern abortion clinics. Regulators later issued a complex set of rules, requiring among other things that all clinics (but no other freestanding medical facilities) undertake extensive physical plant changes, test all patients for both pregnancy and sexually transmitted diseases, and ensure that only a registered nurse, rather than a physician, supervise nursing staff. The state emphasized that these measures would protect women’s health:
This Regulation does not look to strike at a woman’s right to choose whether to have an abortion; rather, these regulations look to protect the health of women who seek abortions by ensuring, among many other things, that women will be offered medical tests to determine whether they have venereal diseases which could complicate abortions and cause other health problems; that abortion providers are housed in facilities which are properly equipped to handle the complications associated with abortions; and that women are treated by medical providers who possess the skills required to perform the abortion procedure safely.98
The state mustered relatively little evidence for these assertions. With respect to the physical-plant requirements, for example, South Carolina relied on a single expert witness with experience constructing ambulatory surgical centers, who testified that the regulations would make for safer clinics.99 From South Carolina’s standpoint, the undue-burden test required nothing more. Given that the state’s regulations simply made abortion more expensive and shuttered only a handful of clinics, the undue-burden test was satisfied, the state claimed, regardless of whether the law actually advanced its stated end. For the providers challenging the regulations, the undue-burden test had a very different meaning. As they explained: “The Supreme Court’s abortion jurisprudence demonstrates that the state may not burden access to abortion with alleged health regulations unless those regulations actually promote maternal health.”100
Pro-life activists continued to see TRAP laws as the perfect way to push both woman-protective reasoning and a new understanding of the undue-burden test. Clarke Forsythe told other AUL members: “In most states, veterinary clinics face more regulations than abortion clinics, which result in the deaths of numerous women (the second victims of abortion).”101 If the movement could convince the Supreme Court that such laws did not fail the undue-burden test, Forsythe predicted that the movement would “be in a position to regulate abortion clinics in all fifty states.”102 After Barack Obama’s election in 2008, laws regulating clinics took on new importance. Without an ally in the White House, pro-lifers refocused on state legislation. In January 2009, NRLC Executive Director David N. O’Steen insisted that “affiliates can still be effective in passing state legislation,” maintaining that such laws had “saved 7 million babies since 1973, a victory that the Obama administration cannot take away.”103
A. Texas Introduces Model Antiabortion Legislation
In 2013, to advance this agenda, AUL encouraged Texas lawmakers to adopt two pieces of model legislation, the Women’s Health Protection Act and the Abortion Providers Privileging Act. The AUL proposal required that all abortion providers have admitting privileges at a hospital within thirty miles and mandated detailed regulations on everything from the size of clinics to the training of staff. “[T]he [vast majority] of all abortions in this State are performed in clinics devoted solely to providing abortions and family planning services,” stated the legislative findings proposed for each law.104 “In most instances, the woman’s only actual contact with the abortion provider occurs simultaneously with the abortion procedure, with little opportunity to ask questions about the procedure, potential complications, and proper follow-up care.”105 After quoting several Supreme Court opinions on the importance of protecting women’s health, the findings further explained:
Abortion is an invasive, surgical procedure that can lead to numerous and serious (both short- and long-term) medical complications. Potential complications for abortion include, among others, bleeding, hemorrhage, infection, uterine perforation, uterine scarring, blood clots, cervical tears, incomplete abortion (retained tissue), failure to actually terminate the pregnancy, free fluid in the abdomen, organ damage, missed ectopic pregnancies, cardiac arrest, sepsis, respiratory arrest, reactions to anesthesia, and even death.106
At a time when state legislators pushed a variety of abortion restrictions, Texas lawmakers considered a proposal patterned on the AUL model law. Legislators also considered a ban on abortions after twenty weeks and a requirement that Planned Parenthood be last in line for state funding for family planning. Democratic Senator Wendy Davis gained national attention by filibustering the abortion restrictions, but by July 2013, Governor Rick Perry had signed HB2 into law. The following September, a group of abortion providers sought the facial invalidation of the admitting-privileges measure. The district court enjoined the law, but the Fifth Circuit vacated the injunction only days later, ensuring that the Texas measure would go into effect.107 The Fifth Circuit subsequently issued an opinion upholding the law.108
At the trial, Texas put forward several expert witnesses arguing that the admitting-privileges requirement improved patients’ continuity of care and providers’ credentialing. These experts claimed that patients faced risks either because of a miscommunication during a transfer to a hospital or because of a lack of proper care available at emergency rooms. The Fifth Circuit reasoned that if women faced longer travel distances as a result of the law, that alone did not constitute an undue burden under Casey. The court also did not find enough support in the record for the district court’s findings that abortion clinics had closed because of the admitting-privileges requirement or that providers were unable to comply with the law. The court emphasized that abortion access might have declined for other reasons, including the aging of abortion providers and concerns about low pay and antiabortion violence.109
The providers did not seek review of the Fifth Circuit’s decision but instead, a week later, an overlapping group of providers filed another suit, this time challenging the ambulatory-surgical center (ASC) provision as applied anywhere in the state and the admitting-privileges provision as applied to facilities in McAllen and El Paso. At trial, the parties stipulated that only seven facilities in major cities would be able to comply with the ASC provision. Texas again offered several expert witnesses. As to the ASC requirement, state witnesses claimed that any abortion required entry into the uterus, a matter best performed in sterile facilities like hospitals. State witnesses also repeated claims that an admitting-privilege requirement would improve the credentialing of abortion providers and guarantee women better continuity of care.110 Although Vincent Rue did not testify, he played an important role behind the scenes: The district court stated that Rue exercised “considerable editorial and discretionary control over the contents of the [State] experts’ reports and declarations. … [T]he level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts’ opinions[, and] the court is dismayed by the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions.”111
The district court enjoined enforcement of both provisions throughout the state.112 The court emphasized that compliance with the ASC provision would cost existing clinics over $1 million and require new facilities to pay three times as much. The district court concluded that if HB2 went into effect, the number of clinics offering abortions in the state would drop, resulting in dramatically higher travel times that would particularly affect poor, rural, and minority women.113
The Fifth Circuit again reversed.114 As to the admitting-privileges requirement, the court held both that the district court had granted broader relief than abortion providers had requested and that the Fifth Circuit’s earlier ruling on the admitting-privileges requirement precluded the challenge to that requirement. Texas also argued that res judicata barred the challenge to the ASC requirement because the providers could have challenged this measure in 2013 and failed to do so. The court of appeals agreed but nevertheless reached the merits. The court concluded that the law ensured that women received the best medical care and rejected the suggestion that the stated purpose of the law was mere pretext because the ASC provision applied only to abortion providers, had no demonstrable health benefits, and would result in the closure of a majority of abortion clinics.115
Nor, according to the Fifth Circuit, did the ASC measure have an impermissible effect under Casey. The court found that even if the law would require 17 percent of women in the state to travel 150 miles or more, that number was not high enough to satisfy the “large fraction” test set out in Casey. If poor, young, or minority women would have a harder time accessing abortion, the court blamed that fact on women’s preexisting circumstances, not on HB2. When it came to the small number of ASCs currently operating in the state, the Fifth Circuit faulted the plaintiffs for failing to prove that existing facilities could not expand their capacity and perform more procedures.116
The Supreme Court’s intervention in the case was a source of optimism for abortion opponents. AUL called the case “the most significant … before the Supreme Court in decades.”117 Charmaine Yoest, the former president of AUL, presented Whole Woman’s Health as a potential vindication of the woman-protective strategy that the movement had refined for decades. “After more than four decades of the abortion industry’s recalcitrant opposition to meaningful oversight,” she stated, “the Supreme Court must unequivocally affirm that it meant what it has said as far back as Roe: states may regulate abortion to protect a mother’s health.”118
III. Influence of the Decision
Whole Woman’s Health represented a stunning reversal of fortune for activists who expected the Court to equate the undue-burden test with rational-basis review. The scale of the defeat suffered by the antiabortion movement comes through clearly by a comparison of the Court’s decision and the arguments in AUL’s amicus brief in the case. “[T]he State is not required to prove the positive impact of HB2 in order for a court to determine that the requirement has a rational basis (and is, thus, not an undue burden),” AUL argued in its brief.119 “The burden is on the Plaintiffs challenging to prove that the State has absolutely no rational justification for enacting the regulation.”120
For AUL, Whole Woman’s Health represented the culmination of decades of dialogue about the meaning of an undue burden on the abortion right. Expanding on that decades-long effort, AUL attorneys defined the undue-burden test as the functional equivalent of rational-basis review. While recognizing that some laws would have a sufficiently burdensome effect to trigger heightened scrutiny under Casey, AUL insisted that the undue-burden test required no analysis of the relationship between the means and ends of a law as long as a rational legislature could conclude that such a relationship existed.
The Court not only declined the invitation to apply rational-basis review to abortion restrictions but also strengthened the protection of abortion rights. Abortion opponents’ disappointment was palpable. AUL vowed to continue the fight for woman-protective legislation. NRLC seemed even more dismayed, saying nothing about woman-centered strategies and emphasizing primarily that the Court had not touched a twenty-week abortion ban also on the books in Texas (which had not been challenged in the litigation).121
Like abortion opponents, commentators predicted that the decision would have a major impact. Sociologist Deanna Rohlinger emphasized that for the first time in years, “pro-life advocates [found] themselves squarely on the losing side of a watershed legal decision.”122 Planned Parenthood leader Cecile Richards cited the Court’s decision in announcing plans to challenge TRAP laws throughout the nation. Writing in the New Yorker, Margot Talbot summarized the view of many, claiming that Whole Woman’s Health had “reinvigorated the undue-burden test, and with it the fundamental right of abortion.”123
But Whole Woman’s Health may not begin the new era so many have predicted. Writing for a five-to-three majority, Justice Stephen Breyer, after rejecting the argument that res judicata barred the providers’ claims, explained why the Fifth Circuit had misunderstood Casey. “The rule announced in Casey … requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer,” he said.124 Although the court of appeals understood Carhart to require deferential review of legislative fact-finding, Justice Breyer asserted that Carhart did nothing to change the “Court’s constitutional duty to review factual findings when constitutional rights are at stake.”125 In Justice Breyer’s reading, Carhart had weighed Congress’s findings against record evidence that conflicted with lawmakers’ conclusions. Thoughtful analysis, not “uncritical deference,” was the hallmark of Carhart.126
According to Justice Breyer, Casey had also balanced the burdens and benefits of a spousal-notification and parental-involvement law, relying “heavily on the District Court’s factual findings and the research-based findings of amici in declaring a portion of the law at issue unconstitutional.”127 As Justice Breyer described it, the undue-burden test required a similarly thorough consideration of any legislative findings, as well as evidence in the record, particularly expert testimony.128
In applying this revamped version of the undue-burden test, the Court seemed to attach more significance to some dimensions of the record than to others. Distinguishing Whole Woman’s Health from Carhart, Justice Breyer noted that Texas lawmakers had made no legislative findings. Concluding that the record contained enough evidence to support the district court’s ruling, the Court further emphasized peer-reviewed studies, arguments made in amicus briefs, and other record evidence. Breyer relied on “direct testimony and [the] reasonable inferences” drawn from the record.129
The Court’s thorough rejection of HB2 seemed to represent a resounding defeat for AUL and others who had embraced a woman-protective strategy. Justice Thomas believed that the Court had undone decades of prior abortion jurisprudence.130 He suggested that while Casey and Carhart had applied something like rational-basis review, Whole Woman’s Health replaced that analysis “with something much more akin to strict scrutiny.”131 Justice Thomas took the Court’s decision as an example of the problems with the “‘made-up tests’” and “‘randomness’” plaguing the use of tiers of scrutiny.132
Justice Thomas also asserted that the Court’s decision had ignored Carhart’s reasoning about scientific uncertainty. According to Justice Thomas, Carhart stood for the proposition that legislatures had wide discretion to regulate abortion “[w]henever medical justifications for an abortion restriction are debatable.”133 Whole Woman’s Health had refused to “leave disputed medical science to the legislature.”134 As long as there were “conflicting [medical] positions,” legislators should have the latitude to regulate. Any balancing in earlier cases involved Casey’s spousal-notification provision, a measure that had “nothing to do with disputed medical science.”135
While Justice Thomas strongly denounced the Court’s ruling, no other Justices joined his opinion. Although the other dissenters might well have shared Justice Thomas’s dismay about the majority opinion, Justice Alito’s dissent was still telling. At a minimum, the dissent reveals what Justice Alito and Chief Justice Roberts might have believed was necessary to win another vote. After a lengthy discussion of res judicata, Justice Alito addressed the majority’s reworking of the undue-burden test. While taking the majority to task for failing to acknowledge that “[t]he proper standard for facial challenges is unsettled in the abortion context,” Justice Alito said nothing about the balancing analysis detailed by the Court. Nevertheless, Justice Alito did not identify any obvious conflict between the majority opinion and Carhart when it came to the idea of scientific uncertainty or to the reworking of the undue-burden test as a whole. Instead, Justice Alito primarily faulted the Court for not requiring real proof of whether HB2 had forced clinics to close or whether existing ASCs could expand to meet women’s demands after the law went into effect.136
Justice Alito may have had strategic reasons for keeping the more significant parts of the majority decision out of the spotlight. Nevertheless, the impact of Whole Woman’s Health seems far more ambiguous than Justice Thomas suggested. The Court did clarify that Casey required courts to weigh the benefits and burdens of law. At least when applying this balancing analysis to HB2, Whole Woman’s Health applied a standard that would lead courts to strike down many more abortion regulations. However, in illustrating what Casey demanded, the Court presented Carhart as an example of balancing analysis rather than a misapplication of it. Indeed, the majority said nothing explicit about Carhart’s understanding of scientific uncertainty.
The medical impact of Whole Woman’s Health may be considerable. The Court’s decision will affect abortion access in Texas, and similar laws in other states may soon be invalidated. The political and constitutional impact of the decision, however, remains far less clear. Whole Woman’s Health does not foreclose the use of scientific uncertainty as a justification for restricting abortion, the strategy relied on so successfully by abortion opponents for decades.
IV. Conclusion
Even after the decision, antiabortion groups remain committed to that strategy in calling for new, far-reaching restrictions. AUL’s 2016 handbook on model state legislation lays out several approaches that hinge on questionable scientific claims. Many still highlight the risks of abortion for women. “Progress toward overturning Roe v. Wade will depend, in large part, on raising public awareness of the negative impact of abortion on women through targeted legislation,” the handbook contends.137
The organization has proposed several laws that draw on the supposed uncertainty surrounding the safety of abortion for women. The Women’s Health Defense Act would impose a ban on abortion after twenty weeks for two reasons: the supposed “pain felt by an unborn child during a late-term abortion” and the higher mortality risks that the organization links to abortion after the twentieth week of pregnancy.138 Although Whole Woman’s Health recognized the safety of abortions, AUL seeks to profit from medical literature on the increasing risks of abortion beyond the first trimester.139
The idea of uncertainty also animates AUL’s proposed expansion of informed-consent restrictions. One model statute stresses the claim that medication abortions can be reversed. Another proposal recommends that lawmakers “enhance their informed consent laws by requiring information on fetal pain, the availability of ultrasounds, [and] the link between abortion and breast cancer (“ABC link”).”140 Although AUL admits that the connection between breast cancer and abortion is not “undisputed,” the organization maintains that enough studies “reveal an … increased risk of breast cancer as a result of the loss of a protective effect of a first full-term pregnancy.”141
Whole Woman’s Health seems unlikely to deter antiabortion groups from using some understanding of scientific uncertainty to advance fetal-protective laws. NRLC has invested in what members of the organization call the “Unborn Child Protection from Dismemberment Act,” a law that would ban dilation and evacuation (D&E), the most common second-trimester abortion procedure. In talking points issued in support of the law, NRLC emphasizes that D&E procedures—the most widely used method that is commonly believed to be safe—do not “have wide support in the medical community” and are “never necessary to preserve the life of the mother in an acute … emergency.”142 NRLC also claims that the law protects fetal life from “feeling the pain of being ripped apart.”143
The factual premises of dismemberment bans are contested at best. In its description of D&E, the American College of Obstetricians and Gynecologists (ACOG) states that “[a]bortion is a low-risk procedure,” even later in pregnancy.144 The American Medical Association (AMA) acknowledges that D&E is the procedure most “commonly used to induce abortion after the first trimester.”145 Arguing that the medical community as a whole rejects D&E seems implausible, but movement members have less trouble arguing that the legitimacy of D&E is disputed, given the position of organizations that oppose use of the procedure like the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG).146
Nor is the argument that D&E (or any abortion procedure) is always unnecessary to save a pregnant woman’s life universally accepted. ACOG has taken the position that abortion is required to save a woman’s life under limited circumstances, including in cases of heart failure, severe infections, and grave cases of preeclampsia. NRLC has included a life-of-the-mother exception in many of its legislative proposals. Again, however, pro-life physicians and medical professionals challenge the conclusion that women would ever die if they did not terminate their pregnancies. Identifying supposed uncertainty remains an easier task than collecting proof.147
The fetal-pain laws sponsored by NRLC also rely on the claim of scientific uncertainty. At the state and federal level, the organization sponsors laws that ban abortion after twenty weeks, the time that NRLC argues that “unborn children are capable of experiencing pain.”148 Together with Doctors on Fetal Pain, an antiabortion organization focused on the issue, NRLC relies on a variety of peer-reviewed studies, but several of the authors of these articles have dismissed antiabortion leaders’ interpretation of their work. NRLC leaders hope to use these disputed scientific conclusions to establish what is in effect a moral or legal proposition. Mary Spaulding Balch of the NRLC stated: “the unborn child’s capacity to experience pain is a significant developmental milepost, making the unborn child at that point sufficiently akin to an infant or older child to trigger a compelling state interest.”149
Constitutionally, the defense of fetal-pain and dismemberment laws also relies heavily on Carhart and its idea of uncertainty. Whole Woman’s Health did not involve the government’s interest in protecting fetal life, and the Court’s opinion did not criticize Carhart’s call to protect fetal dignity as well as fetal life. Perhaps unsurprisingly, then, Carhart stands at the heart of the movement’s defense of dismemberment and fetal-pain laws.
In promoting dismemberment laws, the NRLC extensively quotes from Carhart, characterizing D&E as a procedure “laden with the potential to devalue human life.”150 NRLC also relies on Carhart in assuaging those concerned that dismemberment laws will be little more than “just another doomed attempt to reverse Roe v. Wade.”151 The organization claims that states passing such legislation simply advance the interests that “the Court recognized in [Carhart], that states have a separate and independent compelling interest in ‘fostering respect for life by protecting the unborn child from death by dismemberment abortion’ and ‘in protecting the integrity of the medical profession with passage of this law.’”152
Similar reasoning runs through NRLC’s constitutional case for fetal-pain laws. According to NRLC, Carhart made apparent that “the interests states may assert are not limited to those previously recognized in prior abortion cases.”153 Defending fetal-pain laws will afford abortion opponents the opportunity to identify yet another state interest involving the prevention of fetal suffering. Uncertainty makes an even bigger difference to NRLC’s constitutional strategy. “While some dispute the capacity of the 20-week unborn child to experience pain,” the organization asserts, “Justice Kennedy’s opinion for the Court in [Carhart] makes clear that medical unanimity is not required in order for legislatures to make and act on determinations of medical fact.”154
What of the woman-protective legislation sponsored by AUL? The organization might take hope from the distinctions drawn between Carhart and Whole Woman’s Health, particularly the lack of legislative findings supporting HB2. Whole Woman’s Health certainly cast doubt on the Court’s openness to any woman-protective legislation. As AUL’s handbook suggests, the best chance of defending such laws before the Court after Whole Woman’s Health depends on Carhart. AUL explains: “[T]he Court has held that legislative bodies enjoy wide discretion to enact regulations where there is medical uncertainty as to the safety of abortion procedures, both surgical and chemical.”155
The history of uncertainty arguments suggests that antiabortion activists may not be wrong to believe that Carhart will still advance their cause even after Whole Woman’s Health dealt the movement a significant blow. In the past, activists like David Reardon have stressed the severe psychological consequences of abortion. Reardon and his allies persisted in making these claims even after leading medical organizations refuted them. Rather than abandoning his strategy, Reardon argued that even anecdotal evidence of great harm justified abortion restrictions. In spite of the questionable evidence supporting Reardon’s claims, antiabortion activists successfully persuaded the Casey and Carhart Courts to make them a significant part of abortion jurisprudence.
Nothing in the Court’s most recent decision rules out such a strategy. Whole Woman’s Health establishes that Texas failed to prove the benefits achieved by HB2, but the Court tailored most of its analysis to the specific statute at issue in the case. If anything, Justice Breyer’s opinion suggested that trial courts should enjoy considerable deference in making the findings required by Casey’s balancing test. If one takes the opinion in Whole Woman’s Health at face value, there is little stopping lower courts from upholding abortion restrictions whenever they can make factual findings that are not clearly erroneous and that support the conclusion that the balance of benefits and burdens supports the restriction.
Similarly, because Carhart’s approach to scientific uncertainty was not squarely rejected by Whole Woman’s Health, that aspect of Carhart may still leave legislators considerable latitude in regulating abortion. The Court in Carhart acknowledged that the evidentiary foundation for postabortion trauma syndrome was weak but still relied on evidence of postabortion harm.156 This idea of uncertainty may be even more politically compelling when pro-lifers emphasize the potential of injury, pain, or death. In Carhart, the Court seemed open to the argument that Casey’s balancing would favor whoever invokes a real possibility of grave harm.
Allowing abortion restrictions whenever there is a chance that new evidence could change the scientific status quo could permit far more regulation than those who have celebrated Whole Woman’s Health might expect. Whole Woman’s Health does suggest that abortion opponents will have to work much harder to make a case for abortion restrictions before the courts, but the decision still seems likely to reignite a war about the facts. Because the Court in Whole Woman’s Health made a point of deferring to the district court’s finding of fact, trial courts will have considerable discretion in making findings about the purpose or effect of an abortion regulation.
Claims about uncertainty underlie the effort to introduce bans on D&E and on any abortion after twenty weeks. Arguments relying on Carhart represent the best hope for reviving woman-protective legislation that closely resembles HB2 in its logic or rationale. Until the Court does more to explain what lower courts should do in the face of claims of scientific uncertainty when reproductive rights are at stake, pro-lifers have no obvious cause to abandon these tactics.
So while Whole Woman’s Health was certainly a victory for abortion rights, the game in other ways remains unchanged. Both sides depend heavily on the outcome of presidential elections and the replacement of one or more of the Justices currently sitting on the Court. Pro-choice organizations will continue to pursue a broader agenda that includes access to contraception. Long committed to avoiding any mention of birth control, mainstream pro-life organizations will continue drawing on claims about conscience and the free exercise of religion in seeking exemptions for those providing any form of medical care, including abortion.157 In the meantime, pro-life activists have no real reason to deviate from a strategy that plays to their strengths: targeting later-term abortions and seeking to stigmatize and discredit abortion providers. Indeed, even before the decision in Whole Woman’s Health, there were signs that the movement had begun again to put more emphasis on the fetal-protective strategies that had inspired the movement at its founding and that continue to motivate most of its members. In the summer of 2015, for example, when the pro-life Center for Medical Progress’s series leaked edited videos supposedly showing Planned Parenthood employees selling fetal tissue for profit, the attention paid to the strategy was a reminder that some in the movement felt it was time for a change of focus: they already believed that activists had waited too long to return to an emphasis on fetal rights.158
If Whole Woman’s Health did not on its own push abortion opponents toward a renewed emphasis on fetal life, the Court’s decision also did not begin a conflict about the facts of abortion. The basic dynamics of debate about the effects of abortion on women and unborn children have been in place for decades. It has always been a war waged not just with concrete proof but also with emotion and ideology. At least in the context of abortion, the degree to which factual claims convince people, including judges, has never depended entirely on the quality of evidence gathered by either side. As long as the abortion conflict rages on, the line between facts and ideology will be hard to draw.
Notes
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law.
Author’s note. Thanks to Maya Manian, Johanna Schoen, David Strauss, and Daniel Williams for helpful comments.
1 . For examples of commentators expressing these views, see Amanda Hollis-Bruskey and Rachel VanSickle-Ward, Here Are Two Ways that Breyer’s Wonky Opinion in Whole Woman’s Health Could Transform Abortion Politics, Wash Post (July 13, 2016) (available at https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/03/here-are-2-ways-that-breyers-wonky-opinion-in-whole-womens-health-could-transform-abortion-politics/); Deanna A. Rohlinger, Turning the Anti-Abortion Tide, American Prospect (July 5, 2016) (available at http://prospect.org/article/turning-anti-abortion-tide); Erik Eckholm, Anti-Abortion Group Presses Ahead Despite Recent Supreme Court Ruling, NY Times (July 9, 2016) (available at http://www.nytimes.com/2016/07/10/us/anti-abortion-group-supreme-court-ruling.html?_r=0).
2 . 136 S Ct 2292 (2016).
3 . See id at 2301. For the admitted-privilege provision, see Tex Health & Safety Code Ann § 171.0031(a)(1); 25 Tex Admin Code §§ 139.53(c)–56(a). For the ASC provision, see Tex Health & Safety Code Ann § 245.010(a); 25 Tex Admin Code § 139.40.
4 . 505 US 833 (1992) (plurality decision).
5 . See 136 S Ct at 2310.
6 . 550 US 124 (2007).
7 . For antiabortion expressions of disappointment in Whole Woman’s Health, see Stephanie H. To, Breaking Down Whole Woman’s Health: A Critical Abortion Ruling, Catholic Stand (June 28, 2016) (available at http://www.catholicstand.com/breaking-whole-womans-health-critical-abortion-ruling/); Focus on the Family, Whole Woman’s Health v. Hellerstedt (June 29, 2016) (available at https://www.focusonthefamily.com/socialissues/promos/whole-womans-health-v-hellerstedt); Jay Sekulow, Supreme Court Puts Big Abortion’s Profits Over Women’s Health in Striking Down Commonsense Abortion Regulations, American Center for Law and Justice (June 30, 2016) (available at http://aclj.org/pro-life/supreme-court-places-big-abortions-profits-over-womens-health-in-striking-down-common-sense-abortion-restrictions).
8 . 410 US 113 (1973).
9 . 416 US 462 (1983).
10 . Declaration of Purpose from Americans United for Life (1971) (Americans United for Life Collection, Executive File, the Concordia Seminary, Lutheran Church–Missouri Synod, St. Louis, Missouri). For more arguments of this kind, see Robert M. Byrn, Abortion in Perspective, 5 Duquesne L Rev 125, 134–35 (1966); Thomas L. Schafer, Abortion, the Law, and Human Life, 3 Valp U L Rev 94, 106 (1967–68); David Louisell, The Practice of Medicine and the Due Process of Law, 16 UCLA L Rev 233, 234 (1969).
11 . Meeting Minutes, National Right to Life Committee Ad Hoc Strategy Meeting (Feb 11, 1973), 6 (National Right to Life Committee Records, Box 4, Gerald Ford Memorial Library, University of Michigan); see also National Right to Life Committee Memorandum, “Progress” (Sept 21, 1973) (National Right to Life Committee Records, Box 6, Gerald Ford Memorial Library, University of Michigan).
12 . See National Committee for a Human Life Amendment, Human Life Amendment: Major Texts 1 (available at http://www.nchla.org/datasource/idocuments/HLAmajortexts.pdf).
13 . On opposition to the “con-con” strategy within the movement, see “National Right to Life Committee Rejects Constitutional Convention Call” (Jan 31, 1977), 2–3 (Edward Golden Papers, Box 3, Folder 1, College of the Holy Cross Archives and Inventory Collection). For more on the “con-con” strategy, see William Robbins, Abortion Foes Look to Ultimate Victory, NY Times (June 19, 1977) at 24; Massachusetts Is the Ninth State to Seek a Convention on the Issue of Abortion, NY Times (June 9, 1977) at 88.
14 . On the importance of the funding cases to antiabortion incrementalism, see Mary Ziegler, After Roe: The Lost History of the Abortion Debate 66–68, 131–41 (Harvard, 2015); Scott Ainsworth and Thad E. Hall, Abortion Politics in Congress: Strategic Incrementalism and Policy Change 80–87 (Cambridge, 2010).
15 . 428 US 52 (1976).
16 . Id at 67.
17 . Id.
18 . 432 US 464 (1977).
19 . 432 US 519 (1977).
20 . 432 US 438 (1977).
21 . Maher, 432 US at 473–74.
22 . Id at 474.
23 . Id.
24 . See Bellotti v Baird, 443 US 622, 642–45 (1979) (Bellotti II).
25 . Jane Hubbard, Letter to Editor, Should Akron Monitor Abortions, Akron Beacon Journal (Nov 21, 1977) at A6.
26 . Reginald Stuart, Akron Divided by Heated Abortion Debate, NY Times (Feb 1, 1978) at A10.
27 . Constitutional Amendments Relating to Abortion: Hearings on SJ Res 18, SJ Res 19, and SJ Res 110 Before the Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong 329–39 (1981) (testimony of Vincent Rue). For an overview of abortion-rights arguments about the connection between abortion and mental illness, see Mary Ziegler, Beyond Backlash: Legal History, Polarization, and Roe v. Wade, 71 Wash & Lee L Rev 969, 984–85 (2014). For a sample of the antiabortion response, see Dennis Mahoney, Therapeutic Abortions—The Psychiatric Indication—A Double-Edged Sword, 72 Dickinson L Rev 270, 288–89 (1968); John G. Herbert, Is Legalized Abortion the Solution to Criminal Abortion?, 37 U Colo L Rev 291, 291 (1964). For the brief in Roe making these arguments, see Motion and Brief Amicus Curiae of Certain Physicians, Professors, and Fellows of the American College of Obstetricians and Gynecologists, Roe v Wade, 410 US 113 (1973) (Nos 70-18, 70-40).
28 . Akron Ordinance No 60-1978 § 1870.06.
29 . Stuart, Akron Divided (cited in note 26) at A10.
30 . Cheryl Swain to Jane Hodgson (Nov 23, 1977) (Jane Hodgson Papers, Box 15, Akron Folder).
31 . Jane Hodgson, Testimony Presented to the Akron City Council Re: Proposed Regulations Governing Abortion Clinics (Feb 1978), 4 (Jane Hodgson Papers, Box 15, Akron Folder).
32 . Id at 4–5.
33 . See id.
34 . Akron Council Passes Abortion Law, Ellensburg City Record (March 1, 1978) at 6. On the passage of the Akron ordinance, see William Hershey, Council Passes Abortion Control Bill: Opponents Vow Challenge in Court, Akron Beacon Journal (Feb 28, 1978) at A1.
35 . Roy Lucas to Robert McCoy (June 30, 1982) (Jane Hodgson Papers, Box 15, Akron Folder). On the changing role of abortion clinics and hospitals, see Stanley K. Henshaw, Jacqueline Darroch Forrest, and Elaine Blaine, Abortion Services in the United States, 1981 and 1982, 16 Family Planning Perspectives 119, 119–27 (1984).
36 . Brief for Petitioner City of Akron, 16–17, Akron v Akron Center for Reproductive Health, 462 US 416 (1983) (Nos 81-463, 81-1643).
37 . See Brief Amicus Curiae for Feminists for Life, 7, Akron v Akron Center for Reproductive Health, 462 US 416 (1983) (Nos 81-463, 81-1643).
38 . Id.
39 . Id.
40 . Id.
41 . See id.; see also Brief of Americans United for Life, 16–18, Akron v Akron Center for Reproductive Health, 462 US 416 (1983) (Nos 81-463, 81-1643); Brief for the Petitioner, 54–55, Akron v Akron Center for Reproductive Health, 462 US 416 (1983) (Nos 81-463, 81-1643).
42 . Brief of Amici Curiae Planned Parenthood Federation of America et al, 31, City of Akron v Akron Center for Reproductive Health, 462 US 416 (1983) (Nos 81-463, 81-1643); see also Brief for Respondents and Cross-Petitioners, 45–52, City of Akron v Akron Center for Reproductive Health, 462 US 416 (1983) (Nos 81-463, 81-1643).
43 . Summary of Akron Amicus Curiae Brief (1983), 4–5 (Jane Hodgson Papers, Box 15, Akron Folder).
44 . City of Akron v Akron Center for Reproductive Health, 462 US 416, 442–46 (1983).
45 . See id at 444.
46 . Id at 444–45.
47 . Id at 464 (O’Connor, J, dissenting).
48 . Id at 461 (O’Connor, J, dissenting).
49 . See National Right to Life Committee Statehouse Update (Aug 12, 1983), 1–4 (Galebach Files, OA 9106, Ronald Reagan Presidential Library).
50 . Steven Baer, Report of the Education Division of Americans United for Life (1984), 1–3 (Mildred F. Jefferson Papers, Box 13, Folder 5, Schlesinger Library, Harvard University).
51 . See Victor Rosenblum and Thomas J. Marzen, “Strategies for Reversing Roe v. Wade Through the Courts,” in Dennis Horan et al, eds, Abortion and the Constitution: Reversing Roe v. Wade Through the Courts 198–200 (Georgetown, 1987).
52 . See id at 201.
53 . Id.
54 . Memorandum, Janet Benshoof, ACLU Reproductive Freedom Project, “The New Supreme Court Abortion Decision: A Legal Analysis with Questions and Answers” (July 18, 1983), 1–12 (Pauli Murray Papers, Box 114, Folder 2040, Schlesinger Library, Harvard University).
55 . Id.
56 . Gail Harmon and William S. Jordan to Nanette Falkenberg (June 1984), 1–3 (NARAL Papers, Second Accession, Box 218, Folder 18, Schlesinger Library, Harvard University).
57 . See Emily Tynes to NARAL Affiliates (Sept 6, 1984), 2 (NARAL Papers, Second Accession, Box 218, Folder 18, Schlesinger Library, Harvard University).
58 . Sandy Johnson, “Graphic in the Extreme”: Anti-Abortion Doctor Plans Follow-Up Film, LA Times (Dec 5, 1985) at 24; see also Stephen Chapman, Abortion and the Silent Scream, Chicago Tribune (March 17, 1985) at D3.
59 . Elizabeth Mehren, Medical Group Cites Flaws in “Silent Scream,” LA Times (Dec 3, 1985) at 1.
60 . Paul Houston, “Silent Scream” Called Testament for Pro-Life, LA Times (Feb 13, 1985) at B6.
61 . Elizabeth Mehren and Betty Cuniberti, He’s the Force Behind Silent Scream, LA Times (Aug 8, 1985) at 1.
62 . Chapman, Abortion at D3 (cited in note 58).
63 . Letter from Nanette Falkenberg to Judy Goldsmith (Feb 1, 1985) (NOW Papers, Box 8, Folder 8, Schlesinger Library, Harvard University).
64 . Id.
65 . On the founding and early years of Project Rachel, see Ellie Lee, Abortion, Motherhood, and Mental Health: Medicalizing Reproduction in the United States and Great Britain 24 (De Gruyter, 2003); Cynthia Burack, Tough Love: Sexuality, Compassion, and the Christian Right 76 (State University of New York, 2014). On the founding and early years of WEBA, see Sara Diamond, Spiritual Warfare: The Politics of the Christian Right 97–98 (Black Rose, 1990).
66 . David Reardon, Aborted Women: Silent No More 103 (Loyola, 1987).
67 . David Reardon to C. Everett Koop (Sept 14, 1987), on file with the author.
68 . Id.
69 . Id.
70 . Id.
71 . Letter from C. Everett Koop, US Surgeon General, to President Ronald Reagan (Jan 9, 1989), on file with the author.
72 . See Reva B. Siegel, The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 Duke L J 1641, 1663–64 (2008).
73 . Laurie Ann Ramsey, “How Public Opinion Polls Should Guide Pro-Life Strategy,” Americans United for Life Legislative Conference (1991), 3–4 (Mildred Jefferson Papers, Box 13, Folder 6, Schlesinger Library, Harvard University).
74 . Mary Ellen Jensen, “How Public Opinion Polls Should Guide Pro-Life Strategy” (1991), 5 (Mildred F. Jefferson Papers, Box 13, Folder 6, Schlesinger Library, Harvard University).
75 . Id.
76 . See Nina Martin, How One Abortion Megadonor Forced the Supreme Court’s Hand, Mother Jones (July 14, 2016) (available at http://www.motherjones.com/politics/2016/07/abortion-research-buffett). On the annual postabortion trauma conference, see Barbara Brotman, Both Sides in Abortion Issue Also Remain Divided Over Post-Abortion Stress, Chicago Tribune (April 15, 1990) at E4.
77 . Brotman, Both Sides at 4 (cited in note 76).
78 . Jane E. Brody, Study Disputes Abortion Trauma, NY Times (Feb 12, 1997) at C8.
79 . See id.
80 . See Brief Amicus Curiae of the National Legal Foundation, 13–14, Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992) (Nos 91-744, 91-902); Brief Amici Curiae of the Rutherford Institute et al, 8, Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992) (Nos 91-744, 91-902).
81 . Planned Parenthood of Southeastern Pennsylvania v Casey, 744 F Supp 1323, 1332–33 (E D Pa 1990).
82 . Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 882–83 (1992) (plurality opinion).
83 . Id.
84 . AUL Board Meeting Minutes (April 24, 1993) (Mildred F. Jefferson Papers, Box 13, Folder 5, Schlesinger Library, Harvard University).
85 . Id at 3.
86 . Id.
87 . Counseling and Waiting Periods for Abortion, Guttmacher Institute (Dec 29, 2016) (available at https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion).
88 . Carhart, 550 US at 159 (citing Brief for Sandra Cano et al as Amici Curiae at 22–24, Gonzales v Carhart, 550 US 124 (2007) (No 05-380)).
89 . See Brief for Sandra Cano et al as Amici Curiae at 18–25 (cited in note 88).
90 . See, for example, 550 US at 159 (“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”).
91 . Id.
92 . On the history of hospital access in the early 1980s, see Faye D. Ginsburg, Contested Lives: The Abortion Debate in an American Community 55 (California, 1998). On the impact of hospital mergers, see Barbara Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 12, 21 (Rutgers, 2011).
93 . “AUL Perspective,” Lex Vitae (Feb 1, 1978) 12 (Wilcox Collection, Lex Vitae Folder, University of Kansas).
94 . Id. On Bopp’s push in Cocoa Beach, see Americans United for Life, “Legislation,” Lex Vitae (June 29, 1978) at 2 (Wilcox Collection, Lex Vitae Folder, University of Kansas).
95 . For examples of this strategy, see Donna O’Neal, Martinez to HRS: Shut Clinics, Orlando Sentinel (Sept 23, 1989) at G1; Ed Anderson, Bill That Would Regulate Abortions in La. Is Filed, New Orleans Times Picayune (April 18, 1991) at 1A. On the Sun Times exposé, see Johanna Schoen, Abortion After Roe: Abortion After Legalization 96–118 (North Carolina, 2015); Brooke Kroeger, Undercover Reporting: The Truth About Deception 248 (Northwestern, 2012).
96 . Lynn Sweet, Abortion Foes Fight Deal on Key Case, Chicago Sun Times (Aug 31, 1989) at 14.
97 . Jim Merriner, Another Group Opposes Settling of Abortion Case, Chicago Sun Times (Sept 1, 1989) at 8.
98 . See Brief of Appellants, 57, Greenville Women’s Clinic v Bryant, 222 F3d 157 (4th Cir 2000) (Nos 99-1319, 99-1710, 99-1725).
99 . See id at 16.
100 . Brief of Appellees, 27, Greenville Women’s Clinic v Bryant, 222 F3d 157 (4th Cir 2000) (Nos 99-1319, 99-1710, 99-1725).
101 . Americans United for Life, Fundraising Letter (Oct 18, 2000), 1–2 (Mildred F. Jefferson Papers, Box 13, Folder 6, Schlesinger Library, Harvard University).
102 . Id.
103 . National Right to Life Committee Board of Directors Meeting Minutes (Jan 24–25, 2009), 1–3 (Mildred F. Jefferson Papers, Box 5, Folder 7, Schlesinger Library, Harvard University).
104 . Women’s Health Protection Act, 2013 Model Law and Policy Guide (available at http://www.aul.org/wp-content/uploads/2012/11/Womens-Health-Protection-Act-Abortion-Clinic-Regulations-2013-LG.pdf); Abortion Providers Admitting Privileges Act, Americans United for Life Model Legislation and Policy Guide for the 2015 Legislative Year (available at http://www.aul.org/downloads/2015-Legislative-Guides/Abortion/Abortion_Providers_Admitting_Privileges_Act_-_2015_LG.pdf).
105 . Id at 5.
106 . Id at 5–6.
107 . On the proposals considered by Texas in 2013, see Matthew Waller, Texas Legislature: Abortion Continues to Divide 40 Years After Legal Ruling, San Angelo Standard Times (Jan 22, 2013). On the filibuster and the signing of the law, see Jayme Fraser and Kolten Parker, Perry Signs Abortion Bill; Opponents Vow to Fight On, Houston Chronicle (July 18, 2013) at A1. For the district court’s decision enjoining the admitting-privilege requirement, see Planned Parenthood of Greater Texas Surgical Health Services v Abbott, 951 F Supp 891 (W D Tex 2013). For the Fifth Circuit’s order vacating the injunction, see Planned Parenthood of Greater Texas Surgical Health Services v Abbott, 734 F3d 406 (5th Cir 2013).
108 . Planned Parenthood of Greater Texas Surgical Services v Abbott, 748 F3d 583 (5th Cir 2014).
109 . See id at 593–601.
110 . See Whole Woman’s Health v Lakey, 46 F Supp 3d 673, 680–84 (W D Tex 2014).
111 . Id at 680 n 3. On Rue’s role in the litigation of Whole Woman’s Health, see Mary Tuma, Roe’s End?, Austin Chronicle (Jan 29, 2016) (available at http://www.austinchronicle.com/news/2016-01-29/roes-end/).
112 . Id at 687–88.
113 . See Lakey, 46 F Supp 3d at 680–84.
114 . Whole Woman’s Health v Cole, 790 F3d 563, modified, 790 F3d 598 (5th Cir 2015).
115 . See Cole, 790 F3d at 582–83.
116 . See id at 584–89.
117 . Press Release, AUL Represents State Legislators in Historical Supreme Court Case, Fights to Protect Health and Safety Standards for Women Vulnerable to Abortion Industry Abuses (Feb 3, 2016) (available at http://www.aul.org/2016/02/aul-represents-state-legislators-in-historic-supreme-court-case-fights-to-protect-health-and-safety-standards-for-women-vulnerable-to-abortion-industry-abuses/).
118 . Id.
119 . Amici Curiae Brief of Forty-Four State Legislators in Support of Defendants-Appellants, 15, Whole Woman’s Health v Cole, 2014 WL 6647162 (CA 5) (2016) (No 14-50928).
120 . Id.
121 . For AUL’s response, see Press Release, Supreme Court Rejects Texas Health and Safety Standards for Abortion Clinics (June 27, 2016) (http://www.aul.org/2016/06/supreme-court-rejects-texas-health-and-safety-standards-for-abortion-clinics-aul-says-fight-to-protect-women-from-predatory-abortion-industry-continues/). On the NRLC’s response, see Press Release, NRLC Responds to Supreme Court Decision in Whole Woman’s Health v Hellerstedt (June 27, 2016) (available at http://www.nrlc.org/communications/releases/2016/release062716/).
122 . Rohlinger, Turning the Anti-Abortion Tide (cited in note 1).
123 . Margot Talbot, The Supreme Court’s Just Application of the Undue Burden Test, New Yorker (June 27, 2016) (available at http://www.newyorker.com/news/news-desk/the-supreme-courts-just-application-of-the-undue-burden-standard-for-abortion). For Richards’s statement, see Cecile Richards, On Abortion Access: The Supreme Court’s Signal Is Clear, Houston Chronicle (July 2, 2016) (available at http://www.houstonchronicle.com/opinion/outlook/article/Richards-On-abortion-access-the-Supreme-Court-s-8338537.php).
124 . Whole Woman’s Health, 135 S Ct at 2309.
125 . Id at 2310 (citing Carhart, 550 US at 165).
126 . Id (citation omitted).
127 . Id.
128 . See id.
129 . Id at 2310–17.
130 . Id at 2321–30 (Thomas, J, dissenting).
131 . Id at 2324 (Thomas, J, dissenting).
132 . Id at 2327 (Thomas, J, dissenting) (citations omitted).
133 . Id at 2325 (Thomas, J, dissenting).
134 . Id.
135 . Id.
136 . Id at 2330–52 (Alito, J, dissenting).
137 . AUL, Defending Life: 2016 Edition (2016), 20 (available at http://www.aul.org/defendinglife/2016/AUL_DL2016.pdf).
138 . AUL, Women’s Health Defense Act: Model Legislation and Policy Guide for the 2016 Legislative Year (2016) (available at http://aul.org/downloads/2016-Legislative-Guides/WPP/Womens_Health_Defense_Act_-_2016_LG.pdf).
139 . On the comparably higher rates of complications in the second trimester, see Daniel Grossman, Kelly Blanchard, and Paul Blumenthal, Complications After Second Trimester Medical and Surgical Abortions, 16 Reproductive Health Matters 173, 173–82 (2008).
140 . AUL, Women’s Right to Know Act: Model Legislation and Policy Guide for the 2016 Legislative Year (2016) (available at http://www.aul.org/downloads/2016-Legislative-Guides/WPP/Womens_Right_to_Know_Act_(Informed_Consent)_-_2016_LG.pdf).
141 . Id. On the AUL model showcasing the supposed dangers of medication abortions, see AUL, Abortion-Inducing Drugs Safety Act: Model Legislation and Policy Guide for the 2016 Legislative Year (2016) (available at http://www.aul.org/downloads/2016-Legislative-Guides/WPP/Abortion-Inducing_Drugs_Safety_Act_-_2016_LG.pdf).
142 . National Right to Life Committee, Talking Points: Unborn Child Protection from Dismemberment Abortion Act (2015), 3 (available at http://www.nrlc.org/uploads/stateleg/DismembermentFAQJan15.pdf).
143 . Id at 1.
144 . American College of Obstetricians and Gynecologists, Induced Abortion (May 2015) (available at http://www.acog.org/Patients/FAQs/Induced-Abortion).
145 . American Medical Association, “H. 5.982: Late-Term Pregnancy Termination Techniques,” Health and Ethics Policies of the AMA House of Delegates (available at http://www.ama-assn.org/ad-com/polfind/Hlth-Ethics.pdf).
146 . On the founding of AAPLOG, see American Association of Pro-Life Obstetricians and Gynecologists, About Us (available at http://www.aaplog.org/about-2/).
147 . On the debate about whether abortions are ever needed to save a woman’s life, see Kim Painter, Doctors Say Abortions Sometimes Do Save Women’s Lives, USA Today (Oct 22, 2012) (available at http://www.usatoday.com/story/news/nation/2012/10/19/abortion-mother-life-walsh/1644839/). NRLC has drawn criticism from other antiabortion organizations for supporting legislation with exceptions for abortions in cases of rape, incest, or a threat to the woman’s life. The most recent involves the federal Pain-Capable Unborn Child Protection Act, a law opposed by some House Republicans and activists because of the exceptions made in the law. See U.S. House Passes Bill to Protect Children in the Sixth Month of Pregnancy and Later, Christian Newswire (June 18, 2013) (available at http://www.christiannewswire.com/news/8865172295.html).
148 . Pain Capable Unborn Child Protection Act (May 31, 2016) (available at http://www.nrlc.org/uploads/stateleg/PCUCPAfactsheet.pdf).
149 . Mary Spaulding Balch, JD, Director State Development Department, To Whom It May Concern, Re: Constitutionality of the Model Pain-Capable Unborn Child Protection Act (July 2013) (available at http://www.nrlc.org/uploads/stateleg/PCUCPAConstitutionality.pdf). On the arguments made by Doctors on Fetal Pain, see Doctors on Fetal Pain: The Evidence (2016) (available at http://www.doctorsonfetalpain.com/).
150 . National Right to Life Committee, Talking Points at 2 (cited in note 142) (quoting Carhart, 550 US at 158).
151 . Id at 3.
152 . Id at 4.
153 . Balch, To Whom It May Concern at 1 (cited in note 149).
154 . Id at 4.
155 . AUL, Women’s Protection Project (2013), 2 (available at http://www.aul.org/wp-content/uploads/2014/01/WWP-full.pdf).
156 . Carhart, 550 US at 159.
157 . On the importance that pro-choice and pro-life groups have attached to presidential elections, see Suzanne Staggenborg, The Pro-Choice Movement: Organization and Activism in the Abortion Conflict 133–37 (Oxford, 1991); Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade 239–42 (Oxford, 2015). For examples of the broader agenda adopted by pro-choice organizations, see NARAL Pro-Choice America, What Is Choice? (2016) (available at http://www.prochoiceamerica.org/what-is-choice/); Planned Parenthood Federation of America, Who We Are (2016) (available at https://www.plannedparenthood.org/about-us/who-we-are). On the importance of antiabortion conscience claims, see Elizabeth Deutsch, Note, Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Health Care and the Affordable Care Act’s Nondiscrimination Mandate, 124 Yale L J 2470 (2015). On the broader history and politics of conscience, see Reva B. Siegel and Douglas NeJaime, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L J 2516, 2542–89 (2015).
158 . On the Planned Parenthood videos put out by the Center for Medical Progress, see Manny Fernandez, 2 Abortion Foes Behind Planned Parenthood Videos Are Indicted, NY Times (Jan 25, 2016) (available at http://www.nytimes.com/2016/01/26/us/2-abortion-foes-behind-planned-parenthood-videos-are-indicted.html?_r=0).
