Abortion laws at stake in SCOTUS nomination fight

Questions of 'undue burden' on women in state-level abortion laws

This photo shows the U.S. Supreme Court building in Washington, as the sun rises Sunday, Feb. 14, 2016.


WASHINGTON (MEDIA GENERAL) — Abortion rights supporters fear the current U.S. Supreme Court nomination battle could pose the most legitimate threat to Roe v. Wade’s legal legacy in decades.

The heart of the matter is state-based abortion laws.

Texas abortion clinics face a drastically limited future if state laws clamping down on their existence remain in place. In a state of nearly 27 million residents, less than 10 facilities would still offer abortion services — down from 41 a year before new conservative-backed restrictions took effect.

 
Senate Democrats, including Minority Leader Harry Reid, rally for Merrick Garland nomination on Supreme Court steps. (Chance Seales/Media General)
Senate Democrats, including Minority Leader Harry Reid, rally for Merrick Garland nomination on Supreme Court steps. (Chance Seales/Media General)

On their face, cases like Whole Woman’s Health v. Hellerstedt in Texas are focused on the technicalities of laws that place limits on abortion clinics, but will actually shape “the fate of some of the more than 200 abortion restrictions enacted since a Republican-led push began in 2011,” reports Bloomberg.

Eight justices currently serve on the nine-seat Supreme Court following Antonin Scalia’s unexpected death, and the future of the nation’s abortion laws rest in their (roughly) equally divided hands.

The landmark Planned Parenthood v. Casey case in 1992 moved the court away from the privacy issues which undergirded 1973’s Roe decision and created a new precedent under which states and lawmakers are prohibited from implementing abortion restrictions which place an “undue burden” on women.

The ninth and final justice, nominated by President Barack Obama or his successor (if congressional Republicans get their way), will play a crucial role in determining what qualifies as an undue burden going forward.

EXPERT PANEL UNPACKS LOOMING ABORTION FIGHTS

The panel:

  • Chris Edelson, JD: Author of “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror,” American University assistant professor of government, Harvard Law grad.
  • Jeffrey Jost, JD: Georgetown adjunct law professor, author of “Supreme Court Yearbook,” 25-year SCOTUS journalist, and pens the column “Jost on Justice.”
  • Karen O’Connor, Ph.D., JD: Coauthor of “American Government: Roots and Reform,” abortion rights supporter, founder of the Women & Politics Institute at American University, and distinguished professor of political science.

Q: Where does Roe v. Wade stand today?

Edelson: In 1992, it looked like the Supreme Court was going to overrule Roe v. Wade. There were votes on the court to do it. In fact, it was upheld 5-4, but one of the justices who voted to uphold the decision was not named — there was a joint three-justice decision — one of them said that he or she was not comfortable with Roe v. Wade and thought it was wrongly decided.

O’Connor: Since the (Planned Parenthood v.) Casey decision in 1992, the court has applied a test called, “Is the state restriction an undue burden?” It first found language in a dissent by Justice O’Connor. Eventually, she was able to convince David Souter and Anthony Kennedy to go along with that standard. So, Roe v. Wade is no longer good law.

Q: In the Texas case, what would a 4-4 outcome mean?

Jost: The Texas law — very controversial as it was being considered and as it was enacted — was upheld by a lower court and then by the Fifth Circuit [Court of Appeals]. A 4-4 tie would leave that decision in place, would leave the Texas abortion law on the books, but would not create a national precedent for guiding lower courts in similar cases in the future.

Edelson: That a result the court probably would not want to see and they may find a way around that in some way. Maybe it won’t be a 4-4 results. It’s certainly not clear.

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Q: What role will swing-vote Justice Anthony Kennedy play?

Edelson: Justice Kennedy is usually seen as the swing vote in these cases. He’s voted in some cases — most prominently in the Casey decision in 1992 — to uphold Roe v. Wade. On the other hand, he also voted to uphold the partial birth abortion law passed by Congress in a more recent decision.

Q: What’s next for reproductive legal fights?

O’Connor: States and localities have been working feverishly to come up with all sorts of restrictions. They’re also moving into the area of contraceptives, which I never thought I would see in my lifetime.

Jost: If the [Texas law] is upheld, presumably, other state legislatures will pass similar laws. And, presumably, they’ll be challenged and other circuit courts might reach different results, which would create a sort of strange patchwork of decisions. If you live in New York, you might have different access to abortion than in Texas, which is how the law stood before Roe v. Wade, but the point of deciding these cases was to set uniform rules.

Q: Could abortion decisions sway the 2016 election?

Jost: Abortion rights issues have helped animate the base on both sides, but we haven’t seen a national election in which abortion really drove the result.

Edelson: 1992 was called “the year of the woman.” There were a number of women elected to the Senate and it was an argument that Planned Parenthood made [about the Casey case] to get voters out to vote for a Democrat for president. So, it could be something that appeals to women.

Follow Chance Seales on Twitter: @ChanceSeales

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