Abortion Re-enters the Judicial and Political Fray

It’s hard to overstate the importance to women’s reproductive and economic freedom of the abortion case before the Supreme Court today.  The question in Whole Woman’s Health v. Hellerstedt is whether a Texas law, H.B.2,  that requires abortion clinics to: (1) meet ambulatory surgical center requirements, and (2) have doctors with local hospital admitting privileges, places an “undue burden” on a woman exercising her fundamental constitutional right to seek an abortion.  If the Supreme Court allows the Texas law to survive, it will eviscerate access to abortion in Texas and across Red states – because copycat legislation is either on the books, or waiting in the wings.  To say it will return Texas to the time of Roe v. Wade is not rhetoric.

The good news is that Anthony Kennedy is the Justice who holds the deciding vote on whether H.B.2 is constitutional.  I believe he will side with the liberal wing of the court and strike it down.  Here’s why.

Kennedy was one of the architects of Casey.

Although Kennedy’s record in abortion decisions is inconsistent, he was one of the three authors of Casey, the 1992 case that upheld Roe’s fundamental constitutional right to have an abortion, and set out the “undue burden” standard that the Texas regulations are being examined under.

The court was far more conservative when Casey was decided.

Casey was decided when 8 out of the 9 justices were Reagan appointees, and with the United States submitting an Amicus Brief supporting the abortion regulations (presented by Kenneth Starr).  In Casey the court showed resistance to undoing Roe’s precedent which established the fundamental right to seek an abortion, and I expect that resistance is even stronger now, nearly 25 years after Casey and 43 years after Roe.

The weight of medical opinion supports striking H.B. 2 down. Medical and scientific evidence are of vital importance to the Court.

In Hellerstedt, there are a vast number of amicus submissions from medical authorities, including the AMA,  the American College of Obstetricians And Gynecologists, and the American Academy of Pediatrics, stating that the Texas regulations that relate to admitting privileges and surgical center requirements are not in fact medically necessary to protect women’s health – and that by dramatically limiting access to abortion, they in fact endanger women’s health.  In Casey, the court heeded the medical community’s advice and altered the trimester framework set out in Roe.  It is likely to do so again.

This is a decision at the heart of Kennedy’s views on the liberty of “personal autonomy” and “self-determination” which he believes is constitutionally protected.

And doesn’t the pro-choice lobby know it.  Kennedy is the author of decisions striking down laws banning same sex marriage (Obergefell v. Hodges) and same sex conduct (Lawrence v. Texas).  In both opinions, he described the behavior outlawed by the states as being protected by the Constitution as “central to personal dignity and autonomy.”  In Hellerstedt, amicus briefs from constitutional scholars including Harvard’s Lawrence Tribe parrot Kennedy’s words right back at him in support of striking H.B.2 down, describing the decision whether and when to have a child as “among the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”

Also, some of the amicus briefs are intensely personal and aim to bring abortion out of the shadows, like supporters of gay rights did, successfully.  For example, 113 female lawyers wrote a brief explaining how their abortions enabled them to participate meaningfully in their careers and more broadly in their personal lives, and how this would not have been possible without access to safe and legal abortions.

H.B.2 is death to abortion access by 1000 cuts

If H.B.2 is upheld, it will be the beginning of the end for most abortion clinics in Texas and many other states.  In Texas, there will be 10 clinics for 5.4 million women of reproductive age.   Already in Missouri, thanks to laws like H.B.2, there is one abortion clinic – for the entire state.  If the court upholds H.B.2 it will open the floodgates to copycat legislation which, particularly in red states, will all but end access to abortion.

This case could have the opposite effect of what Texas desired, and MAY make it harder for states to restrict abortion.

Abortion is a “fundamental” constitutional right.  Laws that infringe fundamental rights (like free speech or freedom of religion) are normally given greater scrutiny than the “undue burden” test.  It’s not particularly likely, but it is possible that in deciding that H.B.2 is unconstitutional, the Court re-frames the “undue burden” test as  a “strict scrutiny” test, and makes it even harder to pass laws like H.B.2.  This would be a huge defeat for the pro-life movement and a huge victory for the pro-choice movement.

Whatever happens in this case, it is only going to ratchet up the pressure and rhetoric on both sides as it relates to Scalia’s replacement, the showdown between the Senate and Obama, and how voters feel about each parties’ approach on this divisive issue. Because the Court won’t issue its decision until June, it will continue to be an important part of the political dialog running right into the national conventions in July.


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