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Ciara Torres-Spelliscy: The strange legal marriage of the anti-choice movement and campaign finance

The same jerks after your uterus are shooting down campaign rules; one tactic just backfired.

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Image taken by Flickr user Jeff

By Ciara Torres-Spelliscy

There is a weird link between anti choice laws and the relentless effort to deregulate money in politics. If you look at campaign finance cases across the country often the plaintiffs are anti-choice groups like Wisconsin Right to Life, Iowa Right to Life Committee, or Massachusetts Citizens for Life.

They are decidedly pro-regulation when it comes to women’s bodies

Often when money-in-politics rules are destroyed in court, there was a anti-choice plaintiff involved challenging the law.

One connection between the anti-choice movement and money in politics cases is attorney James Bopp.

He represents many right to life groups and uses them as plaintiffs to challenge campaign finance laws as they simultaneously lobby to make more restrictions on reproductive health for women.

For groups making libertarian arguments in court about how there should be no regulations of money in politics, they are decidedly pro-regulation when it comes to women’s bodies.

The short version of their approach is to regulate abortion out of existence with “TRAP” laws. TRAP stands for Targeted Regulation of Abortion Providers (TRAP).

Texas passed the law anyway which included a requirement that every little clinic offering abortions magically transform into places that meet the requirements of a full surgical center

One of these TRAP laws was the notorious Texas H.B. 2 which Senator Wendy Davis tried to stop with an amazing talking filibuster in pink tennis shoes in the Texas Legislature.

In the end, Texas passed the law anyway which included a requirement that every little clinic offering abortions magically transform into places that meet the requirements of a full surgical center and that doctors performing abortions have admitting privileges nearby even though abortions are one of the safest medical procedures around.

The result of this Texas law was to reduce the 268,581 square miles of Texas to roughly nine abortion providers leaving many Texas women over a hundred miles or more away from the nearest provider.

Given that the same people who brought you TRAP laws brought you Citizens United v. FEC, the 2010 case that allowed unlimited corporate money in all American elections, there was a sweet bit of comeuppance in the latest abortion decision from the Supreme Court called Whole Women’s Health.

To understand this, takes a little explanation about how constitutional law cases are litigated in the United States. There are two basic ways to challenge a law constitutionally – on its face or as applied to a particular plaintiff who claims to be harmed by the law.

If a lawyer challenges a law on its face, she is basically saying the law is fatally flawed and cannot be constitutional in any application. These facial challenges are a particularly heavy lift as courts are reluctant to throw out a legislature’s work whole cloth.

By contrast, in an as-applied challenge the law is only challenged with respect a person or group of similarly situated people.

A rule about not covering your face for a driver’s license may be a generally valid law but not as applied to those whose religion requires them to cover their faces in public. As applied challenges are easier to win because a court can merely carve out relief for the plaintiff while leaving the rest of the law intact.

Now typically if a lawyer brings a case that challenges a law as applied to his clients, then courts will limit the relief they give to those clients. It is rare indeed for a court to strike a whole law that has only been subject to an as-applied challenge.

But one of the things that made Citizens United such an odd ruling is the plaintiffs in that case had only made an as-applied challenge to certain federal campaign finance laws.

As I explain in my new book Corporate Citizen?, Citizens United has spawned a veritable cottage industry of criticism and one of the reasons Citizens United is held in low regard by the legal academy is that the Supreme Court Justices in the majority turned an as-applied challenge into a broader facial challenge.

This move in Citizens United gave hope not just to plaintiffs challenging campaign finance laws, but all plaintiffs challenging any law constitutionally, that they can start with a more modest as applied challenge and can convince a court later to rule broadly to invalidate the entire statute.

This is what happened in the Supreme Court’s latest abortion decision, Whole Women’s Health. One of the arguments from Texas in defending their law was that the plaintiffs could only bring an as applied challenge instead of a broader facial challenge to the law.

The eight member U.S. Supreme Court ruled against Texas on this point of law. Justice Breyer explained in Whole Women’s Health (2016):

…we have held that, if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is “proper.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 333 (2010); … Nothing prevents this Court from awarding facial relief as the appropriate remedy for petitioners’ as-applied claims.

Citing Citizens United, in Whole Women’s Health, the Court ruled that both the surgical facility requirements and the doctor admitting privilege requirements were undue burdens on women’s access to abortion and therefore they were unconstitutional on their face.

This case from Texas will have a ripple effect of invalidating similar TRAP laws across the United States.

And ironically, one of the reasons that the Supreme Court could rule so broadly in this Texas abortion case was the broad ruling in Citizens United. Call it legal Karma.

Ciara Torres-Spelliscy is an Associate Professor of Law at Stetson Law, a Brennan Center Fellow and the author of Corporate Citizen? An Argument for the Separation of Corporation and State.

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