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Slate: The End of Roe
https://slate.com/news-and-politics/2018/06/kennedys-retirement-ensures-roe-v-wade-will-be-overturned.htmlAnthony Kennedy’s retirement ensures the Supreme Court will allow states to outlaw abortion.
Soon, perhaps within the next two years, the U.S. Supreme Court will overturn Roe v. Wade. It might not admit what it’s doing. It might cloak its reversal in minimalist rhetoric and even pretend to adhere to Roe. But the upshot will be the same. After Donald Trump replaces Justice Anthony Kennedy, the court’s new conservative majority will allow states to outlaw abortion.
To understand why the practical death of Roe is all but assured, it’s important to recognize that Roe is already effectively dead letter in many parts of the country. That’s because, in 1992, the Supreme Court—with Justice Anthony Kennedy’s vote—substantially watered down Roe’s promise in Planned Parenthood v. Casey. The Casey court found that while abortion does fall within the “liberty” protected by the Constitution, states may “enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” Indeed, under Casey, a state can limit women’s access to abortion, so long as it does not place an “undue burden” on her ability to terminate a pregnancy.
The undue burden test proved infinitely malleable for decades, allowing states to impose draconian requirements on abortion clinics and patients. Legislators shuttered clinics across the country through so-called TRAP laws, forcing many women to travel hundreds of miles to obtain clinic-based abortion care. And even then, they might not be able to get it. States imposed dayslong waiting periods, as well as mandatory ultrasounds and counseling, during which a doctor could be compelled to tell a patient lies about the procedure. A majority of states have prohibited the use of public funds to finance abortions, and 11 restrict private insurance companies’ ability to cover the procedure. Many clinics simply cannot afford to comply with this onslaught of regulations. Today, there are seven states in which there is just one extant abortion provider.
And that is the state of affairs with a Supreme Court that putatively protects the right to abortion. In 2016, with Kennedy’s vote, the court did strike down a Texas law imposing stringent and gratuitous regulations on abortion clinics. But the vote was 5–3. Chief Justice John Roberts dissented, as did Justices Samuel Alito and Clarence Thomas, asserting that Texas’ rules did not create an “undue burden” for women. (Justice Antonin Scalia had recently died; no one seriously doubts that his successor, Justice Neil Gorsuch, would’ve dissented, too.)
Soon, perhaps within the next two years, the U.S. Supreme Court will overturn Roe v. Wade. It might not admit what it’s doing. It might cloak its reversal in minimalist rhetoric and even pretend to adhere to Roe. But the upshot will be the same. After Donald Trump replaces Justice Anthony Kennedy, the court’s new conservative majority will allow states to outlaw abortion.
To understand why the practical death of Roe is all but assured, it’s important to recognize that Roe is already effectively dead letter in many parts of the country. That’s because, in 1992, the Supreme Court—with Justice Anthony Kennedy’s vote—substantially watered down Roe’s promise in Planned Parenthood v. Casey. The Casey court found that while abortion does fall within the “liberty” protected by the Constitution, states may “enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” Indeed, under Casey, a state can limit women’s access to abortion, so long as it does not place an “undue burden” on her ability to terminate a pregnancy.
The undue burden test proved infinitely malleable for decades, allowing states to impose draconian requirements on abortion clinics and patients. Legislators shuttered clinics across the country through so-called TRAP laws, forcing many women to travel hundreds of miles to obtain clinic-based abortion care. And even then, they might not be able to get it. States imposed dayslong waiting periods, as well as mandatory ultrasounds and counseling, during which a doctor could be compelled to tell a patient lies about the procedure. A majority of states have prohibited the use of public funds to finance abortions, and 11 restrict private insurance companies’ ability to cover the procedure. Many clinics simply cannot afford to comply with this onslaught of regulations. Today, there are seven states in which there is just one extant abortion provider.
And that is the state of affairs with a Supreme Court that putatively protects the right to abortion. In 2016, with Kennedy’s vote, the court did strike down a Texas law imposing stringent and gratuitous regulations on abortion clinics. But the vote was 5–3. Chief Justice John Roberts dissented, as did Justices Samuel Alito and Clarence Thomas, asserting that Texas’ rules did not create an “undue burden” for women. (Justice Antonin Scalia had recently died; no one seriously doubts that his successor, Justice Neil Gorsuch, would’ve dissented, too.)
The rest at link
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