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How goes the legislative attack on abortion rights?

June 28, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains how the campaign to restrict abortion has been largely frustrated – for now – by Monday’s Supreme Court decision.

Justice Anthony M. Kennedy

It had been nine years since the Supreme Court offered a full statement of where it stood on abortion rights.   In the interim, state legislatures, newly dominated by Republican lawmakers, had launched a nearly nationwide campaign to see if they could put before the court a new approach that could persuade the court to reconsider – and maybe even to overrule – the 1973 ruling in Roe v. Wade.

They had been partly encouraged by the court’s then-most recent ruling, the 2007 decision in the case of Gonzales v. Carhart, upholding a federal law banning the so-called “partial birth” abortion procedure.  There, the court had shown some willingness to accept the kind of medical findings that lawmakers would make in enacting a restriction on abortion procedures. And the court had also seemed then to be somewhat lukewarm in its continuing adherence to its famous 1992 decision partly reaffirming Roe v. Wade.   That decision in Planned Parenthood of Southeastern Pennsylvania v. Casey had kept intact a large part of a woman’s right to abortion, in a compromise opinion in which Justice Anthony M. Kennedy had had a significant part.

Because it was Kennedy who wrote the majority opinion upholding the partial-birth ban in Gonzales v. Carhart, it seemed that the support on the court for Roe might possibly be waning.   If Kennedy were willing to validate one restriction on abortion rights, might his vote be available for others?

The legislative campaign had two kinds of laws in mind, along with an overall public policy theory, and that combination, its sponsors believed, might lead the way toward a narrowing of Roe, if not its outright overthrow.

The first of the two new kinds of laws sought to ban abortion at earlier and earlier stages in pregnancy.  The Casey decision had stood for the proposition that a woman’s choice to end a pregnancy was strongest up to the point of “viability” – that is, somewhere around the 24th week of pregnancy.   (“Viability” is the point at which a fetus may survive if delivered from the woman’s body, even though delivered prematurely.)  Relying on what they took to be medical evidence that “viability” might actually occur at 20 weeks, or perhaps earlier, legislatures began lowering the gestational age at which to ban abortion.

Ultimately, relying on evidence of the detection of a fetal heartbeat as early as six weeks in pregnancy, some bolder legislatures reached for that as the point for imposing a ban.

This approach was based on what abortion opponents took to be reliable clinical evidence, on which legislators could rely.  That was true also of the second mode of new legislation: imposing on abortion clinics new health and safety regulations.  Those, too, the sponsors contended, were based upon new evidence of the medical risks of some abortion procedures.

And both of the new approaches were backed on the overall theory that it is up to legislatures to protect the health of women facing the choices of what to do about their pregnancies.  If Roe and Casey were keyed to concerns about women’s reproductive health, the sponsors argued, then legislatures should take on the responsibility of assuring that their safety is assured; they had some evidence of risky – or worse – procedures at some clinics, and that encouraged them to consider legislation based on the public safety argument. Public health and safety, it was argued, is a traditional concern of state governments.

Since this wave of new legislation intensified over the past few years, one of the two approaches turned out not to succeed in the courts.   After lower courts began striking down laws that pushed the ban on abortion earlier and earlier in pregnancy, states took those cases on to the Supreme Court.  But the court turned them down – two, within a week of each other early this year; it did not show any interest in moving the concept of “viability” earlier in pregnancy.

The campaign succeeded very well, for a time, in a key test case from Texas involving the other kind of legislation: restrictions on the day-to-day functioning of abortion clinics.  A federal appeals court upheld two restrictions: one required any doctor performing abortions to have hospital admitting privileges within 30 miles of a clinic, and the other required all abortion clinics to upgrade their facilities to the equivalent of a surgical care center.

Abortion rights supporters had argued unsuccessfully in the appeals court that, together, those two new types of controls would result in closing more than 30 of the 40 abortion clinics functioning in Texas.  But the appeals court upheld both, and, most importantly, it did so after declaring that courts had to accept the word of legislatures that the measures they were adopting would, indeed, protect women’s health and safety.

This part of the anti-abortion campaign reached the Supreme Court this term in the case of Whole Woman’s Health v. Hellerstedt.   Abortion rights supporters were anxious about the potential outcome; the fate of the principles spelled out in the Casey decision was on the line.

On Monday, the suspense ended.  By a vote of 5 to 3, the court struck down both of the Texas restrictions, and did so by relying noticeably upon the Casey precedent.  In fact, the majority opinion expressly noted that the court continued to follow the “viability” line on when states could act to restrict abortion, and it instructed courts to make up their own minds, based upon evidence at trials, of whether new abortion control laws would, in fact, protect or endanger women’s health.

Justice Stephen G. Breyer wrote the majority opinion; he had been assigned that task by the senior Justice in the majority – Anthony Kennedy.  They formed the majority along with Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.   Chief Justice John G. Roberts, Jr., joined in the dissenting opinion written by Justice Samuel A. Alito, Jr.   Justice Clarence Thomas joined the Alito opinion, and wrote his own dissenting opinion.

For the time being – and nothing remains static for long in the ongoing abortion controversy – the campaign to restrict the right has been largely frustrated.  There is no sign, though, that the challenge is at an end.  How long Monday’s five-Justice majority would remain together is a factor that could make a difference in the future.

Editor’s Note: On July 1, Lyle Denniston joins Constitution Daily as our full-time Supreme Court correspondent based in the Washington, D.C. area.


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