In 1992, the Supreme Court upheld Roe v. Wade by the narrowest of margins. In Planned Parenthood vs. Casey, a very timid 5-4 majority upheld the “essential holding” of Roe, but said that states had a “legitimate interest” in restricting abortions after “fetal viability,” and regulating abortions to protect the health of the mother and the health of the fetus that “may become a child.” The test is whether abortion restrictions place an “undue burden” on a woman attempting to get a constitutionally permitted abortion.
Since then, a woman’s right to choose has been relentlessly under attack. Pro-life advocates have not taken a direct approach, and pro-choice advocates have carefully avoided a frontal assault. But using Casey’s framework, state after state have chipped away at abortion rights in America. The timeline for “viability” has been pushed back. Requirements forcing mothers to be more “thoughtful” have been upheld. Few burdens are “undue” to a woman trying to access her constitutional rights. Abortion clinics have been closed. Doctors have been shot.
Today, the Supreme Court made its strongest stand for a woman’s right to choose in 25 years. In the case of Whole Woman’s Health v. Hellerstedt, the Court voted 5 -3 to roll back the Texas restrictions on abortion clinics that would have required them to meet the standards of ambulatory care facilities in able to remain open. The Court also overturned the Texas requirement that abortion doctors have admitting privileges at hospitals. Most abortion clinics in Texas would have had to close had Texas’s laws remained on the books.
Don’t let the 5 -3 opinion fool you. Anthony Kennedy joined the liberals to create a bare majority, just as he did in Planned Parenthood, but this wasn’t a really close case. Only Clarence Thomas voted to uphold the Texas restrictions. Both Chief Justice John Roberts and Samuel Alito would have remanded the case back to the lower courts for additional fact finding. You can argue that there was a 7-1 majority that Planned Parenthood is “settled law,” and that Planned Parenthood’s focus on the health of the mother means more than whatever the state says is in the best interests of the mother. From Stephen Breyer’s majority opinion:
The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer... The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.
That may not sound like much, but balancing a woman’s right to choose against the evidence of health benefits, as opposed to the conjecture of pro-life state legislatures, is huge victory for women’s advocates. Even Roberts and Alito wanted more “facts.” It’s not that Roberts or Alito or Kennedy are “pro-choice” now. It’s that Roberts and Alito and Kennedy are unwilling to simply take a state’s word for it that a particular abortion restriction will help women who will be denied access to abortion. This case should be a signal to lower courts and state governments that open season on abortion rights is at an end.
This case makes it look like there is broad consensus, at the Supreme Court, that a woman’s right to choose cannot be regulated out of existence.
While Breyer wrote the majority decision, this is another victory for individual rights brought to you by Anthony Kennedy. Please, do not mistake Kennedy for a “liberal.” But it would seem that Kennedy does not want to go down in the history books as a man who took away constitutional rights. In the last two years, he’s decided that the LGBT community is entitled to equal protection under the law, and now that women have a right to access their constitutional rights over their own bodies. Kennedy might be a proud Catholic, but he has gone to the mattresses to uphold the secular rights of American citizens.
States can still do a lot to restrict abortion rights and access to millions of American women. But if you want to functionally obliterate a woman’s right to choose, you better come with a Constitutional amendment.
The essential holding of Roe v. Wade has come to full term.
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