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U.S. Supreme Court Hears Biggest Abortion Case in 25 Years on Wednesday, March 2

Religion News Service photo by Lauren Markoe

On Wednesday, March 2 the U.S. Supreme Court will hear oral arguments in the case, Whole Woman’s Health v. Hellerstedt.

In the 1973 the Roe v. Wade U.S. Supreme Court case that legalized abortion focused on the issue of privacy.

In 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey focused on whether abortion restrictions were an, “undue burden” on women. An undue burden is defined as, “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In a 5-4 decision, Roe v. Wade was upheld but provisions were upheld for a 24 hour waiting period and in the case of a minor, parental consent.

In the 2007 Gonzales v. Carhart the ruling had the same focus as Planned Parenthood v. Casey and determined that laws against partial-birth abortion were not an undue burden.

This brings us to Whole Woman’s Health v. Hellerstedt. Audio of the oral argument will be available at SCOTUSblog Wednesday. The case cuts to the chase of the “undue burden” argument.”

The case originated with 2013 Texas law that brought safety standards to a consistent level with other surgical clinics. According to the standards, physicians must have admitting privileges within 30 miles of where they commit the abortion and hallways need to be an appropriate width to allow gurneys to take women to an ambulance if needed. What will be argued is whether these safety standards now part of Texas law present an undue burden to women because the increased expense will cause clinics to close resulting in limited access to abortion.

From the SCOTUS Blog:

Issue: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.

The following is from a February 29, 2016 Religion News Service article by Charles Camosy in which Mr. Camosy points out Five things to watch when the Supreme Court hears its most important abortion case in 25 years:

1. Will Justice Kennedy or the liberal justices ask about the case of Dr. Kermit Gosnell?


Gosnell’s abortion clinic was a disturbing example of a failure to regulate. He was convicted of three counts of murder, 21 felony counts of performing illegal abortions, and 211 counts of violating the 24-hour informed-consent law. The Philadelphia grand jury concluded: “If oversight agencies expect to prevent future Dr. Gosnells, they must find the fortitude to enact and enforce the necessary regulations.” Texas insists its law is a response to this case. If Kennedy or the liberal justices are asking about Gosnell, it may signal they believe Texas is legitimately concerned about women’s health.

2. Will Justice Kennedy signal he wants to make sweeping abortion law?

An unpredictable justice, Kennedy recently voted against Obamacare. He also ruled in favor of same-sex marriage. Might he try to dramatically swing the pendulum again? If he asks about huge issues like reproductive freedom and human dignity, this may signal Kennedy wants to make sweeping changes rather than focus on narrow issues. Government has been given very little guidance about how to apply the undue burden standard, and he may want to change that. (I’ve argued elsewhere that the concept of human dignity Kennedy used in approving same-sex marriage may be good news for abortion opponents when it comes to his views on abortion.)

3. Will justices Kagan or Sotomayor break ranks?

With Justice Antonin Scalia’s death, conventional wisdom is that the court would tie 4-4, which would uphold the appeals court endorsement of the Texas law. A different outcome would require a conservative or liberal justice to break rank. Justices Elena Kagan and Sonia Sotomayor have not yet heard a major abortion case. Indeed, at the time they were appointed, abortion rights activists were worried that both had a thin paper trail when it came to abortion. Interestingly, as a federal court judge Sotomayor ruled in favor of a policy that restricted abortion in the Bush administration. And working as a legal adviser to the White House, Kagan rejected pressure from abortion rights groups, recommending that the Clinton administration support a ban on partial-birth abortion. Might either Justice conclude abortion clinics ought to be regulated for safety like other surgical clinics? Liberal jurists have historically supported regulating other kinds of industries, protecting the health and safety of the vulnerable over threats to “shut down” due to the supposed financial burden. Perhaps we will see it happen again.

4. Will Justice Kennedy focus on the narrow issues of this case?

If Kennedy’s questions are narrowly focused
— asking if the Texas law protects the health and safety of women, or why abortion clinics are closing in Texas, or whether states have the freedom to regulate medical clinics — this may signal a fairly narrow ruling.

5. Will the ruling move toward a positive right to abortion?


Those who object to the Texas law argue that if abortion clinics shut down it would violate the rights of women in a given area. But Texas is not formally restricting abortion. At worst it is applying existing health and safety laws consistently, which may lead the abortion industry to shut down some clinics. And if the court suggests this violates the undue burden standard, it may also be suggesting women not only have the right not to be interfered with in getting an abortion, but that there is a positive right to abortion. This idea becomes even more important since both Democratic presidential candidates Hillary Clinton and Bernie Sanders believe abortion ought to be funded by the government.
GloriaTV-Washington, D.C.
In this oral arguments update #5 is the very thing that happened to LeRoy Carhart's client, Jennifer Morbelli. The hospital couldn't reach him because he was on his way from Maryland back to Nebraska to start more abortions in Nebraska the next morning. This is the life of a 7-days-a-week abortion circuit-rider.More
In this oral arguments update #5 is the very thing that happened to LeRoy Carhart's client, Jennifer Morbelli. The hospital couldn't reach him because he was on his way from Maryland back to Nebraska to start more abortions in Nebraska the next morning. This is the life of a 7-days-a-week abortion circuit-rider.
Abramo
@Jungerheld: You are right. America has ended up with a guy like Trump. And the bad news: He may well be with a big distance the best of the candidates.
Jungerheld
@Abramo, could you be right? Not all have evolved to such a dangerous place, although I admit the downward spiral doesn't seem reversible. The SC did have its right place and, theoretically (?) could again. As for leaving things to our politicians, that isn't looking like much of a consolation. "We the people" are responsible for the celebrity status of one such as Trump. We don't have …More
@Abramo, could you be right? Not all have evolved to such a dangerous place, although I admit the downward spiral doesn't seem reversible. The SC did have its right place and, theoretically (?) could again. As for leaving things to our politicians, that isn't looking like much of a consolation. "We the people" are responsible for the celebrity status of one such as Trump. We don't have oppressive propaganda machines, only media that responds to our base instincts. We have some solid candidates, intelligent, thoughtful, and too many of us are more interested in the rude guy with the spray-on tan.
Abramo
@Jungerheld: If the U.S. have "evolved" beyond the Constitution then it is ridiculous to have a Supreme Court. Let the politicians decide without Constitution.
Jungerheld
@Abramo, you've identified the importance in my thinking - some are committed to judging based on the Constitution and some seem to believe that we've "evolved" beyond the Constitution or that the Constitution is dead.
Abramo
I wonder why it is so important who sits in the Supreme Court. Do they judge based on the Constitution or based on their private convictions. If the second is the case, they should not be called "judges" but "lawmakers".