This is an edited version of an article that originally appeared on ATL Redline.
Are there five Supreme Court justices who will stand with Wendy?
Wendy Davis is the Texas legislator who famously tried to filibuster new Texas restrictions on abortion clinics. The restrictions included requiring abortion clinics to meet the same standards of ambulatory care as emergency rooms, and required all abortion clinicians to maintain residency at hospitals. Davis argued that those restrictions would effectively close most abortion clinics in Texas.
Her filibuster ultimately failed. Now, those restrictions are law and that law is being challenged at the Supreme Court. The stage is set for what will be the third most important SCOTUS ruling on abortion, ever.
The most important decision is obvious. Roe v. Wade articulated a woman’s right to choose. It’s probably the most important women’s health decision in history.
But Roe left it up to the states to regulate how and when women had the right to choose, and some states decided to make it all but impossible for women to actually exercise their rights.
That’s why the second case is just as important, but less well known. In Planned Parenthood v. Casey, the Court said that states could not place “undue burdens” on women seeking an abortion. Obviously “undue burdens” is open to some interpretation, and in recent years, states have consistently ratcheted up the burdens placed on women seeking abortions. It’s unclear if the standards set forth by Justice Sandra Day O’Connor in the Planned Parenthood case are even good law any more. States have aggressively restricted the right to choose without rebuke from the courts.
Is there a limit?
When the Court hears Whole Woman’s Health v. Cole, we will see if states have finally gone too far. If Texas’s law stands, then we might as well stop calling the right to choose constitutionally protected. Instead, it will devolve into a state-by-state right: if you are an American woman who wants an abortion, you best have bus fare to California.
Whether or not the Texas restrictions pass muster under the Planned Parenthood test is the biggest legal question. But I think there is an even more important issue here where the lower courts split. From Adam Liptak in the New York Times:
The lower courts are divided over whether they should accept lawmakers’ assertions about the health benefits of abortion restrictions at face value or investigate to determine whether the assertions are backed by evidence.
Think about that for a second. The Texas officials who passed these restrictions say that the new rules protect the health of women. The legal question is whether or not those officials have to provide any evidence at all that their restrictions actually protect women’s health.
It’s a huge question, because if we hold Texas to a standard of factual accuracy, then clearly its law should be overturned. Since the law went into effect, there’s already evidence of a massive increase in unsafe, homemade abortions in Texas. It’s an unwinnable argument, for pro-life forces, that restricting abortions benefits the health of the mother. The only way they win that argument is if the courts are not allowed to question it.
Wins, big wins, and losses
The Court could just say that the Texas restrictions are undue burdens under Planned Parenthood, and that would be a huge win for pro-choice advocates. But an even greater victory would be to say that Texas (and other states) actually have to prove their restrictions are beneficial with, like, actual evidence and stuff. That would be an amazing decision.
Of course, the Court could just as easily rule that the Texas restrictions are just fine and effectively kill abortion in red states.
The decision will be almost entirely in Justice Anthony Kennedy’s hands. Kennedy was part of the majority in Planned Parenthood. And his swing vote now is likely to be decisive. One can reasonably assume that Justices Breyer, Ginsburg, Sotomayor, and Kagan will vote on the side of women’s health. Hell, three of the four liberal justices are women themselves, and know what it’s like to believe that 50% of the population should have equal access to health care.
And one can reasonably assume that Chief Justice Roberts and Justices Alito, Thomas, and Scalia will come down on the side of “life is sacred…unless it’s a poor child who needs government assistance.”
It’s Kennedy’s world, and we’re all just living in it.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
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