On October 5, 2015, Attorney General Kamala D. Harris along with the Attorneys General from ten other states joined a friend-of-the-court brief written by the State of New York in support of the Whole Woman’s Health clinic’s petition for a writ of certiorari to the United States Supreme Court. A petition for writ of certiorari asks the Supreme Court to decide a case, which the Supreme Court is not required to do. The case, Whole Woman’s Health, et al. v. Cole, concerns government enactment of laws referred to as “targeted regulations of abortion providers” (TRAP laws). The States’ brief argues that the Supreme Court should grant certiorari review to resolve a disagreement between regional appeals courts about the level of deference a court should give to legislative findings underlying a state law regulating abortion services, assertedly to protect maternal health, when that law is challenged as an unwarranted—and thus undue—burden on the constitutional right to obtain an abortion. In this case, the Fifth Circuit held that state legislative judgments regarding the safety of abortion services are entitled to near-total deference, and an abortion regulation purportedly enacted to promote maternal health will be viewed as a legitimate health measure, even in the face of strong evidence that the regulation does not advance maternal health. Our friend-of-the-court brief argues that such uncritical deference to legislative findings where state abortion regulations do not serve their stated goal of protecting women’s health can fail to give sufficient protection to the constitutional right to obtain an abortion. Moreover, proper respect for the right to an abortion requires courts to more closely review abortion regulations to determine if TRAP laws actually promote women’s health. The brief further argues that appropriate judicial review provides guidance to the states, channeling their decision-making toward evidence-based abortion regulations and discouraging ineffective, or even counterproductive, regulations. On November 13, 2015, the Unites States Supreme Court granted Whole Woman’s Health clinic’s petition for a writ of certiorari and agreed to review this case.
In November 2013, the Attorney General joined a multi-state amicus brief filed with the United States Supreme Court that supported a Massachusetts law creating a 35-foot buffer zone around reproductive health care facilities against a First Amendment challenge. The Massachusetts law prohibited anyone from being within 35 feet of the entrances or driveways of health care facilities (other than hospitals) where abortions are offered or performed, with certain limited exceptions. The brief argued that the buffer zone law is a reasonable time, place and manner restriction, especially in light of Massachusetts' prior unsuccessful experience with narrower restrictions. The Supreme Court disagreed, unanimously holding that the law violated the First Amendment. The Supreme Court's decision is entitled McCullen v. Coakley, 124 S.Ct. 2518 (2014).