By Alan Neff and Caroline Fredrickson

As the Supreme Court reportedly prepares to overrule Roe v. Wade and Planned Parenthood v. Casey and “return the issue of abortion to the people’s elected representatives,” we argue here that religious-liberty and free-speech rights under the U.S. Constitution—and other constitutionally-grounded arguments—could be raised to defend women’s right to control their bodies without interference from the State. We argue that it is very likely that the U.S. Supreme Court eventually will be forced to confront—or ignore—the fact that States’ anti-choice laws burden mainstream religious beliefs and practices protected by the U.S. Constitution and erode other long-standing constitutional rights.

Below, using a hypothetical set in Texas, we outline federal and state-law arguments that might be raised in opposition to anti-choice laws. These arguments also might be available in States that have “anti-SLAPP” statutes - laws enacted to prevent lawsuits aimed at muzzling people who exercise their right to engage in constitutionally protected speech and conduct. (This isn’t an exhaustive list of potential arguments, and we expect pro-choice litigators will raise other arguments as well.) Of course, the States might quickly move to amend their laws in response, but the legislative process takes time and litigators would have some opportunity to frame the issues in court, a positive move for public education that might help slow or curb the legislative response.

However these lawsuits play out in state courts (or federal trial and appellate courts), in sustaining these anti-choice laws, the Court will have to pick constitutional winners and losers among long-established religions, undercutting the First Amendment’s Establishment Clause, Free Exercise Clause and Free Speech Clause. The Court will also have to hamstring rights established under other constitutional provisions, including the right to equal protection of the laws under the 14th Amendment and the right to travel freely among the States under, among other provisions, the Privileges and Immunities Clause of Article IV of the Constitution.

Before we describe our Texas hypothetical, it is worth a moment to explain the role of an anti-SLAPP statute. Anti-SLAPP statutes generally protect First Amendment rights to speak on issues of public interest and prohibit retaliation by persons who want to suppress or punish protected speech with baseless litigation against the speakers. (Anti-SLAPP laws vary widely from State to State, and a number of States don’t have them. The website of The Reporters Committee for Freedom of the Press maintains an overview of, and guide to, anti-SLAPP laws on its website. Thus, anti-choice states can be cross-tabulated with those that also have anti-SLAPP statutes. It is notable that Oklahoma, which recently enacted extremely anti-choice legislation, also has an anti-SLAPP law, which may be found here.)

Although we use a hypothetical developed from Texas law to present our constitutional and statutory arguments, we're confident our analysis is grounded in real-world litigation theories and tactics. In fact, a suit apparently based on religious-liberty and privacy arguments has just been filed in Florida challenging that State's anti-choice law.

HYPOTHETICAL

A young married couple lives in Dallas, Texas. Both spouses are employed, and they own their own home. They are debt-free, but they do not have savings. The couple gets its health insurance through the husband’s employer. His healthcare benefits include prenatal and postnatal care beyond basic costs of ob-gyn services and any hospitalization necessary during and after a pregnancy: the employer also provides post-natal paid parental leave for employees of newborn children for two months and full-day pre-K daycare, on-site at the husband’s office, at no cost to employees. Together, all of these benefits will allow the wife to return to work after expiration of her unpaid post-natal leave. The wife’s employer does not provide equivalent pre- and post-natal employee health benefits; it only provides unpaid parental leave for 12 weeks and basic ob-gyn and hospitalization services before, during, and after a pregnancy.

In light of the stability of their relationship, their financial circumstances, and their insurance, the couple feels secure in proceeding with a pregnancy. Late in the first trimester of the pregnancy, however, the husband’s employer unilaterally terminates its pre- and post-natal benefits. The husband’s employer also announces that it will start a round of layoffs that might eliminate the husband’s department and, very possibly, his job.

The couple becomes worried that they will no longer be able to afford the costs of parenting and may even lose their home. They are members of a Reformed Jewish congregation in Dallas, so they consult their rabbi, as they consider what they might do about their fraught circumstances. The rabbi advises them that provisions of the Talmud expressly permit termination of pregnancies. He explains that this has been a long-standing Reform interpretation of the Talmud. The rabbi also gives the couple a list of clinics in other States that the Congregation maintains for its members and the public.

After giving the matter further thought, the couple decides to terminate the pregnancy. Because Texas has banned abortion after a fetal heartbeat is detectible, the couple travels to Illinois to terminate the pregnancy. Afterward, they return to Texas.

An anti-choice neighbor learns of their decision and sues the husband, the rabbi, and the congregation, under Sec. 171.208 of Texas's new anti-choice law, which allows private suits against any person who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise.” (Under Section 171.206(b)(1), the statutory class of defendants expressly excludes women who terminate their pregnancies.)

EXERCISING RIGHTS

The husband, rabbi, and Congregation file a motion to dismiss the state-authorized vigilante lawsuit, raising defenses grounded in the First Amendment and other provisions in the U.S. and Texas Constitutions and in Texas statutes. As noted here, “.... Jewish law allows for abortion in many cases, and requires it if the mother’s life is in danger.” So, there are First Amendment religious liberty/free-exercise defenses directly available to the defendants: with few limitations, Reform Judaism allows termination of pregnancies. Rabbinical counseling that termination is permissible is, therefore, a First Amendment exercise of both free speech and religious liberty.

Cooperation of the husband in the termination of the pregnancy is also a free-exercise/free-speech activity. His religion expressly allows it. (The Texas anti-choice statute acknowledges, in Section 171.208(g), that “This section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court's interpretation of the Fourteenth Amendment…”) (Emphasis added.)

And the Privileges and Immunities Clause of Article IV of the Constitution, according to long-standing constitutional case law, allows the husband and wife to travel out of state to terminate the pregnancy in a State where termination is lawful. (It is possible that the Privileges and Immunities Clause could also be invoked by any group that organizes out-of-state travel for indigent persons who want to terminate their pregnancies but live in an anti-choice State.)

The defendants also can cite an umbrella constitutional-defense provision of Texas’s anti-choice law (Section 171.209(f): “Nothing in this section shall in any way limit or preclude a defendant from asserting the defendant's personal constitutional rights as a defense to liability under Section 171.208, and a court may not award relief under Section 171.208 if the conduct for which the defendant has been sued was an exercise of state or federal constitutional rights that personally belong to the defendant.” (Emphasis supplied.) Among those personal constitutional rights: under the 14th Amendment, citizens are entitled to equal protection of the laws from State discrimination against their freedom of speech, religious liberty, and freedom to travel, as well as each of those freedoms themselves.

State constitutional arguments might be grounded in at least four provisions of the Texas Constitution’s Bill of Rights. The Texas Supreme Court would have to decide whether these state-constitutional provisions prevent the State from enforcing its anti-choice law through citizen/vigilante law suits:

• Section 3: “EQUAL RIGHTS. All freemen, when they form a social compact, have equal rights…”
• Sec. 3a. “EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.”
• Sec. 6. “FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences…No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship…”
• Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press…”

(Under our legal system, the Texas Supreme Court is the final arbiter of the meaning of Texas law, except where arguably in conflict with the U.S. Constitution or federal laws, where the U.S. Supreme Court is the final authority.)

Relying on several of the federal and state constitutional free-speech provisions noted above, the defendants also can invoke Texas’s anti-SLAPP law, which the State enacted to protect “...the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law...” Notably, the Texas anti-SLAPP law provides that “...a court shall dismiss a legal action against the moving party if the moving party demonstrates that the legal action is based on or is in response to: (1) the party's exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association…”

If this case were to reach the Texas Supreme Court, that tribunal would have to decide which of these conflicting state constitutional or statutory provisions would control the outcome of the case. Usually, state constitutional provisions get more weight from state courts than state statutes. So, Texas’s highest court might have to rule that the anti-choice statutes fall afoul of these other state constitutional and statutory provisions that arguably protect women’s health and privacy.

In response to adverse rulings by the Texas Supreme Court, the Texas legislature might rush to amend its anti-choice and anti-SLAPP statutes—and perhaps even the Texas state constitution—to exclude all of these constitutional defenses, under an argument that, stripped of any fig leaf, would amount to “Well, Texas didn’t mean to protect all, or so many, constitutional rights under its constitution or laws.”

If the Texas Supreme Court ruled in favor of the state’s anti-choice law, then the pro-choice parties could still try to persuade the U.S. Supreme Court to rule in their favor on the federal constitutional issues noted above (and other arguments they might raise). Consequently, the Supreme Court eventually will have to answer the question whether returning the issue of choice to “the people’s elected representatives” should enable the States to overturn long-standing federal constitutional doctrine relating to Free Speech, Free Exercise of religion, interstate travel, and equal protection.

If the Court declines to protect these defendants’ decisions and actions, it will reveal that the Court’s interest in the protection of Constitutional rights ends where women’s health-care choices begin. If that happens, the public will have to vote its pro-choice beliefs in ever-larger numbers, to elect state legislators who will repeal these oppressive and misogynist laws.