SCOTUS Likely to Hear Abortion Case This Term

SCOTUS Likely to Hear Abortion Case This Term November 11, 2015

PlanetWingnuttiaWhen the Republicans took over most of the state legislatures in 2010, they embarked on a campaign to pass as many laws as possible — well over 100 of them — that would make it more expensive and difficult to keep an abortion clinic open. They’re called TRAP laws — Targeted Restriction of Abortion Providers. And it’s likely that the Supreme Court will be taking up a challenge to such laws this term.

Eight months from now, Roe v. Wade could be dead.

On Friday, the Supreme Court will consider whether to hear two cases involving ambitious state laws seeking to restrict — or even eliminate — access to abortion. This is actually the second week in a row that the justices will discuss whether to hear these cases, Currier v. Jackson Women’s Health Organization and Whole Woman’s Health v. Cole, although the Court’s recent practice has been to discuss a case during at least two conferences before announcing that the Court will take the case. If the justices agree to hear either or both cases, they could announce this fact as soon as Friday afternoon.

The Court is widely expected to agree to hear at least one of these cases — which present the biggest threat to a woman’s right to obtain an abortion that has reached the Court since 1992’s Planned Parenthood v. Casey, a case that explicitly led the justices to consider whether Roe v. Wade should be overruled.

Cole involves a Texas law that imposes onerous new credentialing requirements on doctors and similarly onerous building requirements on abortion clinics. Together, these restrictions are expected to shut down over 80 percent of the abortion clinics in Texas. Currier involves a Mississippi law that imposes similar credentially requirements to the ones imposed in Texas. If this law goes into effect, it’s expected to shut down Mississippi’s only abortion clinic.

Both laws fit a strategy embraced by anti-abortion activists and state lawmakers in recent years. Lawmakers can and should regulate abortion clinics to ensure that they are safe and pay proper regard for the health of patients. A state may require that all abortions be performed by adequately trained physicians, for example. Or it may mandate the use of sterile equipment where appropriate. The Texas and Mississippi laws, however, try to drive a wedge into the space current legal doctrine carves out for laws protecting women’s health.

Most people do not know how close we were to losing a woman’s reproductive rights entirely in Planned Parenthood v Casey in 1992. We only know this because of Harry Blackmun’s papers, released a decade or so later after his death. They told a story the public never knew, that the initial vote in that case was a 5-4 majority to overturn Roe v Wade. The majority opinion was assigned to Justice Kennedy. But then Justices O’Connor and Souter began working on him, trying to talk him out of his position.

For weeks they tried to plant some doubt in his ear. They told him that if he would change sides, they would sign on to an opinion allowing a range of restrictions on abortion that were included in the Pennsylvania law being challenged — waiting periods, parental consent, etc — if he would agree not to overturn the central finding in Roe that a woman had a right to choose to have an abortion. He finally agreed with them and ended up writing the majority opinion going the other way. But that’s how close we came to seeing Roe overturned.

Much of this may depend on the strategy of the plaintiffs in these cases. In Casey, the attorney made a very bold strategic choice of demanding that the court either go all the way and overturn Roe or overturn the Pennsylvania law. I doubt that choice will be made this time. But Kennedy will again be the key vote. I doubt he will agree to overturn Roe, as the conservatives on the court will likely seek to do, but he has accepted a great many restrictions in the past and it seems likely that he will do so again.

But if such TRAP laws are upheld, Roe may be functionally, though not technically, overturned in many states. Wherever Republicans control the legislatures, they can kill the right to choose through death by a thousand regulations, making it prohibitively expensive to open and maintain a clinic. Those laws have already closed down dozens of clinics around the country, denying millions of low-income women access to abortion. These cases, should they take them, are very dangerous indeed.

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