A Chill Wind Blows
By 
The Supreme Court yesterday refused to hear an appeal to an 8CA opinion that largely ignores the 2016 Whole Women’s Health decision, signalling that the federal judiciary should once again feel free to uphold laws designed solely to stop perfectly safe abortion clinics from operating:
The Supreme Court announced on Tuesday that it will not hear Planned Parenthood of Arkansas v. Jegley, despite the fact that the lower court’s opinion in this case is at odds with the Court’s 2016 opinion striking down a Texas anti-abortion law.
As a general rule, it is important to not over-read the significance of the Court’s decision not to hear a case. Often, the justices may turn aside a case for idiosyncratic reasons that have little to do with the merits of the case itself.
In the abortion context, however, anti-abortion lower court judges have a long history of reading the Supreme Court’s precedents creatively in order to limit reproductive freedom. The Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt was widely viewed as the justices’ way of signaling to these lower court judges that they went too far.
Viewed in light of this history, anti-abortion judges are likely to read the Court’s non-decision in Jegley as a signal that they can once again start playing games. Meanwhile, Donald Trump is filling the federal bench with judges who oppose Roe v. Wade. The result is likely to be a quiet rollback of abortion rights as Trump’s judges and their allies feel out just how much leeway the Supreme Court is willing to give them.
So, regardless of what the Court intended to accomplish by turning away Jegley, the practical effect is likely to be serious restrictions on the right to choose.
Why would the Court’s four liberals not vote to grant cert and challenge this opinion? Well, for one thing, Kennedy is extremely unreliable and might have voted to slice the prosciutto to uphold the Arkansas law. But there’s an even worse alternative:
On the day it was handed down, Whole Woman’s Health suggested that this age of salutary neglect was over, and that the Court would start policing abortion rights once again. The Court’s decision to permit Jegley to stand will now send the opposite message to lower courts — “go ahead and uphold that anti-abortion law, because the Supreme Court is unlikely to do anything about it.”
Looming over Jegley, moreover, is the possibility that Whole Woman’s Health could be reproductive freedom’s last stand in the federal courts. Justice Anthony Kennedy, who turns 82 next month, is rumored to be considering retirement. And he provided the key fifth vote in Whole Woman’s Health. If he is replaced by Donald Trump, that will almost certainly be the end of abortion rights in the federal judiciary.
Indeed, it is possible that the four liberal justices elected not to hear Jegley (in the Supreme Court, four justices are enough to take up a case for a full hearing) because they fear that a retirement is imminent, and they don’t want to give Trump’s appointee a vehicle to overrule what is left of Roe.
Of course, it would be the worst sort of BLACKMAIL to suggest that the result of presidential elections might affect the status of reproductive rights.