With its recent decision in Whole Woman’s Health v. Hellerstedt, the Supreme Court of the United States has broken new ground in abortion jurisprudence. The decision seems to transform the liberty to obtain an abortion into a super-right enjoyed by the abortion industry, not by individual American women. But this transformation opens the abortion right to a new vulnerability. It renders vindication of the right dependent upon costly, case-by-case litigation.
In Hellerstedt, the Court struck down a Texas law that requires abortion clinics to satisfy healthcare-provider standards, reversing a tightly-reasoned Fifth Circuit decision. Texas requires abortionists to have admitting privileges at nearby hospitals and to meet safety standards as ambulatory surgical centers. Somewhere in the penumbrae and emanations of the Court’s own precedents, five Justices discovered a constitutional rule prohibiting those state laws.
The claimant in the case is a limited liability company that operates abortion clinics. The abortion industry cannot exercise a woman’s right to obtain an abortion. As Justice Thomas pointed out in dissent, long-established law provides that a party who has no right at stake in a case has no standing to assert another person’s right on her behalf. Yet the Court allows third-party standing in the abortion context, and allowed abortionists to litigate in Hellerstedt, without identifying actual women burdened by Texas’s law. From the beginning, Hellerstedt indicates that the Court is vindicating the rights not of women but of abortionists who profit from performing abortions on women and who earn more profits when they are less regulated.
Both the procedural and substantive irregularities of the majority opinion demonstrate, as Justice Thomas also observed, the Court’s willingness to manipulate and ignore law “to achieve its desired result.” On its current trajectory, Thomas charges, the Court “will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
The opinion also shows that the Court’s abortion jurisprudence is increasingly eluding the grasp of reason itself. The majority credited the District Court’s finding that “before the act’s passage, abortion in Texas was extremely safe with . . . virtually no deaths occurring on account of the procedure.” One need not accept the pro-life conviction that all human beings are persons with inherent and unalienable rights to recognize that the purpose of the abortionist’s practice is to cause deaths. The notion that the abortion procedure causes “virtually no deaths” can seem plausible only to minds that have been so numbed to the reality of abortion that they can no longer recognize the tragedy of abortion or the wisdom of laws that regulate its practice.
Law-abiding pro-lifers are rallying around a call for the executive officers of Texas to refuse to obey the ruling. The hashtag #Texit has gained some traction on Twitter.
On the other side, abortion supporters insist that Texas and other states must “respect” the “fundamental rights” that the Supreme Court purports to discern. They are already planning how the Hellerstedt decision can be used by the abortion industry to challenge health and safety laws in other states.
One wonders to what extent Texans are willing to fight for their right to protect vulnerable Texans from the Kermit Gosnells and Douglas Karpens of their state. But the allusion to secession should not be dismissed lightly. Rarely has the Court cast this much doubt upon the legitimacy of its own rulings. Rarely have the Court’s supporters sounded so much like Stephen A. Douglas.
So, do the Governor and Attorney General of Texas have an obligation to obey the Supreme Court’s ruling in Hellerstedt? To understand this question one must first understand what sort of obligation the Hellerstedt ruling produces. This requires a bit of history and a short lesson in jurisprudence.
The Abortion Right: From Doctor’s Liberty to Doctor’s Super-Claim-Right
The architect of the Court’s landmark 1973 abortion decision in Roe v. Wade, Harry Blackmun, designed the decision to protect not primarily women’s rights and well-being but rather the abortion doctor’s liberty to abort. The abortionist’s liberty correlates with a duty of the political community—the rest of us—not to impose criminal sanction or civil liability for the abortionist’s judgment and action (often motivated by significant financial gain) to end the life of the unborn child.
The abortionist’s liberty attained the status of a super-liberty in the Court’s 1992 decision in Planned Parenthood v. Casey, where the Court adopted a new standard for reviewing abortion regulations. Since Casey, the Court strikes down not only legal prohibitions of abortion but also any law that places an “undue burden” on abortion. This category includes many laws that in other contexts would be viewed as commonplace health and safety provisions.
Cultural elites have more recently pushed to transform the super-liberty into a super-affirmative-entitlement—a claim-right that imposes upon all of us not just a duty to abstain from interfering in abortion but also an affirmative duty to support and even subsidize the abortion industry’s practice. This evolution is illustrated in their insistence that taxpayers must pay subsidies to abortion providers and that people of faith and well-formed conscience must be forced to pay for abortifacient drugs.
Lower federal courts have embraced this new super-claim-right as they shape the “undue burden” test to immunize abortionists from health and safety regulations. As my colleague Michael DeBoer observed of one US District Court ruling, the judge failed to notice that abortion rights, like the right to bear arms secured by the Second Amendment, “entail freedom or protection from government action or interference, not an entitlement to government action or support.”
In Hellerstedt, the Court did not expressly endorse this affirmative super-claim-right. But underlying the majority’s speculative inferences, selective recitations of the record evidence, and statements of its own “common sense,” one might perceive the assumption that the people of Texas have a duty either to remove impediments to abortion or actively to facilitate the practice.
Essential to the Court’s conclusion that the Texas law imposes an “undue burden” on abortionists was the trial court’s finding that after the laws took effect the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider [increased] from approximately 10,000 to 290,000.” And because enforcement of the surgical-center requirements might further reduce the number of Texas abortion clinics to seven or eight, the majority affirmed the District Court’s finding that the remaining facilities could not “meet the demand” for abortion in Texas. Left unexplained is the nature of the state’s duty to ensure that the demand for abortion is met.
The evolution of the abortion right between Casey and Hellerstedt is subtle. But if any lesson can be gleaned from the last half century of judicial activism, it is this: the Left plants small seeds in one case that flower into novel constitutional innovations in the next; when fully grown, these innovations choke out ordered liberty and the commitments that sustain it.
The Threat to Women’s Liberty
The open-endedness of the Hellerstedt standard is both a strength and a weakness for abortion providers, who can exploit the standard’s indeterminacy as long as state officials refrain from pushing back, but who can invoke no clear constitutional mandate if they meet resistance. The problem with affirmative claim-rights is that they do not mean anything in the abstract. This makes them radically unlike liberties, which are universal precisely because they can clearly be stated in their general, abstract form.
A liberty imposes the same duty on everyone. You have a liberty not to be punched in the face because everyone else has a duty not to punch you in the face. As a duty of abstention, the duty that correlates with a liberty can be the same for everyone in every context. It travels with you wherever you go and is enforceable against everyone in a wide variety of circumstances. You might waive your liberty by consenting to its limitation or abrogation—for example, by stepping into a boxing ring—or by committing a crime the lawful punishment for which is the deprivation of your liberty, but otherwise you cannot lawfully be deprived of your liberty without your consent.
The Court’s recent abortion jurisprudence threatens to eliminate a fundamental aspect of this liberty. The same legal doctrines—the tort of battery and the crime of assault—secure both my right not to be punched in the face and a woman’s right not to be operated on without her informed consent. Even before the interests of the unborn child are factored into the Court’s cost-benefit analysis, an objective observer can therefore perceive that physicians have no general liberty to perform abortions. Physicians have only particular duties to particular women arising out of particular contracts and fiduciary and professional relationships, always specified and limited by general duties of medical law and ethics.
Those duties correlate with and secure the fundamental liberty of women. The state of Texas is trying to secure and enforce precisely those duties. The Court’s invented super-claim-right for abortionists threatens to thwart the efforts of Texas and other state officials to do their lawful duty to protect women’s liberty.
The Need For Case-by-Case Adjudication
By contrast to a liberty, an affirmative claim-right imposes no duty—it is “under-determined” in jurisprudential language—in general and in the abstract. Because a claim-right must impose a particular duty on a particular person or institution to act or refrain from acting in a particular way, it can only give rise to particular, not general, duties, and only when fully specified in particular contexts.
In other words, claim-rights impose no concrete duties until settled on a case-by-case basis. Particularly where, as in the Hellerstedt decision, the claim-right is artificial, having no basis in existing law, it requires determination in particular judgments.
This determination has two components, one normative and one factual. The normative component of the required judgment entails discerning some unambiguous and conclusive source of obligation. This requires first discerning and declaring—not inventing and imposing—an authoritative source of obligation that preceded the duty. To invent a source of duty after the fact and invoke a general, affirmative claim-right in support is to eschew law and justice. It is to cheat.
Consider a hypothetical right claimant, Sam. Sam has no general claim-right to be paid $5. Now, Sam might allege that Sam has a particular claim-right to be paid $5 by me. That is another way of alleging that I have a particular, affirmative duty to pay Sam $5. But to make the case that I owe Sam such a duty, Sam must first show some normative source of obligation. If my duty is a moral duty, then Sam must demonstrate a source of moral obligation—promise, filial affection, mutual dependence, fiduciary relationship, etc. If my duty is a legal duty, then Sam must show that some conclusive and precise rule, contract, property right, or other determined law requires me to pay Sam $5. Because I have no general legal duty to pay Sam (or anyone else) $5, my liberty not to pay Sam $5 must be curtailed by an unambiguous and fully-determined legal obligation. Sam cannot lawfully take $5 from me unless that obligation existed prior to Sam’s demand.
There is no legal basis for a general duty to support abortion doctors’ practices, any more than there exists a legal basis for a general duty to support any other doctors’ practices. Neither you nor I nor the governor of Texas is under a general obligation to provide assistance to a physician who wants to practice medicine. And the Constitution contains no unambiguous and fully-determined duty to do so.
The factual component of an affirmative duty requires more particular specification. To return to the earlier hypothetical, I have a duty to pay Sam $5 only if the evidence shows that the relevant legal standard has been satisfied in the particular case. Suppose Sam alleges that I owe him $5 for medical services rendered. Before judgment can enter in Sam’s favor, Sam must produce evidence that I promised to pay for the services, that he obtained my informed consent before performing the services, that he performed the services on me, that he performed the services in a manner that was consistent with the relevant standard of care, that he did not cause injury to me during performance of the services, and Sam must rebut any evidence that I put in negating his proof.
There is no general factual predicate for enforcing the claim-right endorsed in Hellerstedt. As legal scholar Erika Bachiochi observed, the federal courts have difficulty with facts in abortion contexts. And in Hellerstedt the federal courts have drawn inferences without evidence.
No General Duty to Comply With Hellerstedt
Let’s return to the present controversy. Do the Governor and Attorney General of Texas have a constitutional duty to obey the Hellerstedt ruling? That depends upon what the Hellerstedt ruling means. Certainly, the judgments and orders of courts are binding sources of obligation. The Supreme Court’s jurisdiction, vested in it by the Constitution, is a power to decide cases and controversies. When the Court decides a case its decision is binding on the parties to that case.
But what about persons who were not parties to the case? Here things get more complicated. In response to the ruling of the Court in Dred Scott v. Sandford that black people are not citizens and could be treated as property, Abraham Lincoln famously argued that judicial decisions “must be binding in any case upon the parties to a suit as to the object of that suit” and should be extended “very high respect and consideration in all parallel cases,” but do not irrevocably determine “the policy of the Government upon vital questions affecting the whole people.”
Implicit in Lincoln’s argument was the commonsense proposition that the Dred Scott decision did not create a general duty that officials must honor every claim for return of a purported fugitive slave. Rather, the artificial “right” that the Court purported to discover in Dred Scott—the slave owner’s purported claim-right to abrogate the liberty of his purported slave—had to be settled on a case-by-case basis.
This makes the rights logic of Dred Scott quite similar for present purposes to the logic of Hellerstedt. The super-claim-right invented by the Hellerstedt majority is an inherently meaningless abstraction until it is settled and specified in particular judgments, on a case-by-case basis. The as-applied challenge by the claimants in Hellerstedt does not resolve hypothetical as-applied challenges by other potential claimants. The Hellerstedt claimants challenged the law as applied to them, and the Court’s ruling in their favor should not be read more broadly than that. The majority’s insistence that the Texas laws are unconstitutional on their face is belied by its extensive (though one-sided) discussion of the factual record.
The Governor and Attorney General of Texas should obey the law, not the Court’s ambiguous abstractions. They should continue to secure the fundamental liberty of vulnerable Texans and make the abortion industry assert its super-claim-rights in court.
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason (Cambridge University Press).