Column: Ironic justice: Laws passed to gut Obamacare are now being used to protect abortion rights
The law of unintended consequences is never as powerful as when those consequences originate from a hasty, ill-considered action.
Conservative forces in Ohio and Wyoming are learning this the hard way.
In those states, judges have blocked antiabortion laws enacted in the wake of the Supreme Court’s egregious Dobbs decision overturning federal abortion rights by citing partisan laws enacted to undermine the Affordable Care Act in 2011 and 2012.
When you use wording that talks about choice in healthcare, it’s a pretty natural fit with respect to abortion care.
— David S. Cohen, Drexel University
Those anti-Obamacare laws codified their citizens’ right to choose their own health insurance and healthcare.
Their goal was to counteract the ACA’s mandate that individuals carry health insurance. The laws were written expansively, however, to incorporate guarantees of unrestricted access to healthcare.
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“The laws were passed saying people have a healthcare choice,” says David S. Cohen, an expert on abortion law at Drexel University. “They didn’t specify ‘with respect to health insurance plans,’ but just used general wording. When you use wording that talks about choice in healthcare, it’s a pretty natural fit with respect to abortion care.”
Ohio’s law — the Health Care Freedom Act, enacted as a constitutional amendment in a 2011 ballot referendum — bars the enactment of any state or local law that prohibits, among other things, “the purchase or sale of healthcare.”
The Wyoming constitutional amendment was crafted by legislators and passed by voters last year, as Quinn Yeargain, a law professor at Widener University Commonwealth Law School in Harrisburg, Pa., recently reported at the online magazine Bolts. The amendment says that “the right to make healthcare decisions is reserved to the citizens of the state of Wyoming,” and that “this state shall act to preserve these rights from undue governmental infringement.”
In both states, judges took the constitutional verbiage for its plain meaning.
In blocking Wyoming’s antiabortion law with a temporary restraining order last week, Teton County District Judge Melissa Owens reinforced a ruling she issued in August, finding that the law violated the constitutional provision that “unambiguously provides all competent Wyoming citizens with the right to make their own healthcare decisions.”
She found that “a decision to have an abortion is a healthcare decision.”
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The Legislature tried to circumvent her ruling by enacting a second law declaring that “abortion ... is not healthcare.” Owens rejected that assertion and enjoined the new law, which was to take effect Sunday.
In the Ohio case, Judge Christian A. Jenkins issued a preliminary injunction in October blocking the antiabortion law as a violation of the Healthcare Freedom Act, which he found protects citizens’ “liberty and personal autonomy” and applies to Ohioans’ “right to make decisions about their own bodies — including the fundamental right to make a decision as private and central to a person’s bodily integrity as the decision to have an abortion.”
State officials are appealing Jenkins’ ruling to the Ohio Supreme Court on procedural grounds. But it has been left standing in the meantime.
These cases are part of a movement by abortion rights advocates to use state laws and constitutional protections to fight antiabortion laws.
“The idea is that the U.S. Supreme Court’s interpretation of rights under the U.S. Constitution acts as a floor, not a ceiling,” says Rebecca Kendis, an expert on reproductive rights at Case Western School of Law in Cleveland and a member of the legal team challenging the Ohio antiabortion law.
Many state constitutional protections are more explicit and far-reaching than those in the U.S. Constitution, Kendis told me. Some have no counterpart in the U.S. Constitution, which can immunize them from U.S. Supreme Court decisions.
“There are certain provisions for religious freedom, due process, explicit language mentioning privacy,” Kendis says. Every state constitution is unique, “warranting a push to look to our state constitutions as a source of strong individual protections.”
These issues seldom came up before the Dobbs opinion because a federal right to abortion was guaranteed in the Supreme Court’s 1973 decision in Roe vs. Wade.
Indeed, high courts in some of the reddest of red states have blocked antiabortion laws based on statutes that existed long before the court handed down its opinion in Dobbs vs. Jackson Women’s Health Organization in June, invalidating Roe vs. Wade.
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On March 21, the Oklahoma Supreme Court found 5 to 4 that the state Constitution “creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”
That right was triggered “if at any point in the pregnancy ... the woman’s doctor determined that continuing the pregnancy ... will endanger the woman’s life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy.”
The judges objected to language in Oklahoma’s post-Dobbs laws allowing abortions only when a woman is in “actual or present danger.”
The majority observed, “We know of no other law that requires one to wait until there is an actual medical emergency in order to receive treatment when the harmful condition is known or probable to occur in the future.”
On March 16, the North Dakota Supreme Court unanimously upheld an injunction against that state’s antiabortion law, finding that it “unnecessarily restricts a woman’s access to an abortion to preserve her life or health,” citing language that had been in North Dakota law virtually since statehood.
The North Dakota abortion ban “criminalizes abortions performed even if the abortion is to preserve the life or health of the woman,” the court observed, but only allows physicians charged with felonies to “prove by a preponderance of the evidence the abortion was necessary to save the life of the woman.”
“This is not narrowly tailored to achieve the state’s interests in women’s health and protecting unborn human life,” the court found.
But reproductive rights advocates know that even if they prevail in these skirmishes, the road to turning the clock back to the pre-Dobbs era will be long and may not ultimately yield victory. That’s because court decisions on abortion rights are not about only the law.
“Our current Supreme Court is elected and predominantly made up of justices who campaigned against the right to abortion,” says Freda Levenson, legal director of the ACLU of Ohio, which is participating in the legal challenge to that state’s antiabortion law. “We know that as soon as they get their hands on the injunction that we won, they’re going to reverse it.”
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That would reinstate the “heartbeat” ban in Ohio — a law that forbids abortions if a “heartbeat” is detected, typically as soon as six weeks into pregnancy and sometimes before a woman knows she is pregnant. Medical experts say that at that stage it’s not even accurate to identify what’s detected as a heartbeat, as the embryo has not developed a heart; rather, the “heartbeat” is merely electrical activity by a clump of cells that eventually may become a heart.
Abortion rights advocates are moving to place a constitutional amendment on Ohio‘s November ballot guaranteeing the right to abortion.
States have numerous ways to outlaw abortions that don’t involve judgments about the life of the mother. Ohio has enacted a passel of them, though most have also been blocked or suspended pending court rulings.
One requires abortion clinics to have transfer contracts for emergencies with hospitals within 50 miles. “Many clinics are not within 50 miles of a hospital, so this is a way of driving clinics out of business,” Levenson says. Another law, also currently blocked, requires the burial or cremation of fetal and embryonic tissue from surgical abortions, which the ACLU describes as a “terrible bill [that] creates horrific and unnecessary burdens on those seeking abortion care.”
The state constitutional arguments “sound pretty convincing,” Cohen says. “But as with a lot of things when it comes to abortion, this gets very political and gets intertwined with particular judges’ views on abortion and healthcare. So there’s no way to predict how this is going to go.”
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