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The Supreme Court Gave the War on Reproductive Freedom the Green Light

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As a follow-up to Dahlia Lithwick’s excellent recent piece about the proliferation of state anti-abortion restrictions, I have a new Prospect column arguing that while in some ways these restrictions challenge the Supreme Court doctrine, the bulk of the regulations are all too consistent with Casey:

But the victory came at a steep price. Casey, as O’Connor had long advocated, replaced Roe’s clear “trimester framework” with the opaque “undue burden” standard. That is, an abortion regulation was now unconstitutional if it unduly burdened a woman’s fundamental right to choose, and the Court held that all but the spousal notification requirement were not so burdensome as to curb rights. In theory, this subjective formulation could provide a fairly robust protection of reproductive freedom. The way the Casey plurality actually applied the standard, however, all but guaranteed that it would not. The Pennsylvania law is now a model for the proliferation of anti-abortion legislation that has followed in its wake.

Particularly problematic in Casey was the plurality’s decision to join the anti-Roe dissenters in upholding a 24-hour waiting period for women who wish to obtain an abortion. Waiting periods would seem to be the definition of an undue burden in at least two respects. First, with the justices’ assumption that women who choose to obtain an abortion may be acting impulsively or irrationally, the waiting period, like the spousal-notification provision, is inconsistent with the Court’s decisions protecting gender equality. Second, waiting periods place a particular burden on poor and rural women, for whom an additional trip to an abortion provider can be prohibitively costly or time-consuming, while urban women with flexible job schedules may have easier access.

I think the last point is particularly crucial. I could have lived with the new “undue burden” if the Court had signaled that it would pay some attention to regulations that had a disproportionately large impact on women who already had limited geographical and financial access to abortion. Instead, starting with Casey it did the opposite. I don’t think it’s a coincidence that the two regulations the Court found unconstitutional under Casey (the ban on D&X abortions and the spousal notification provision) would not have a significantly greater on poor, rural women than women similarly situated to Sandra Day O’Connor.

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  • rea

    The whole point of all these silly regulations like the 24-hour waiting period is to make it more difficult and complicated to get an abortion. “Undue burden” is essentially a tautology.

    • Scott Lemieux

      I think the new euphemism for “vacuous tautology” is “minimalism.”

    • Holden Pattern

      No burden is “undue” for the forced-breeding lobby, which includes a now-solid all-male all-Catholic majority of SCOTUS. Problem solved.

    • Murc

      And people wonder why I prefer bright-line rules.

    • Joe

      That is the net effect but the “point” often is more a matter of sending a message. I think Stevens had a good point in Webster that there is clear establishment clause concerns here.

      As to the standard, any number of laws in some fashion ‘burden’ rights. A perfectly valid health regulation can ‘burden’ abortion rights. So, you have to choose the right adjective there. The problem isn’t the one used (sounds like “due process”) but how it is applied.

  • c u n d gulag

    Slightly OT –
    Did anyone see the travesty of an abortion bill the House passed yesterday?

    I, for one, will now call the House, the ‘Republican Majority He-man Woman Haters Club.’
    I’m going to call my female ‘Republican Majority He-man (She-man?) Woman Haters Club’ Representative, and give her an earful.

  • mark f

    We must never forget the real victim of abortion: Steven Tyler.

    • Anonymous

      Dear lord. This encapsulates so much of the right-wing misogyny. Poor innocent Steven Tyler takes legal guardianship of a 14 year old so he can fuck her and then the girl goes and gets an abortion and he is so traumatized he has to go on to an affair with a Playmate, drug benders and virtual abandonment of his children. Won’t someone think of the dudes?

      But I wonder, is their shitty music also to be blamed on abortion?

      • Glenn

        Dude Fucks Little Lady

    • PSP

      If I hadn’t clicked through and actually read it, I simply would not have believed anyone could argue those facts as a case against abortion.

      After reading it, I cannot imagine that anyone could consider that a convincing argument against abortion or that Buckley would ever have published anything so completely nonsensical.

    • Murc

      Wow. I think I threw up a little in my mouth. Is there a word that means ‘thank you for bringing this horrible thing that I nonetheless wish I’d never seen/read to my attention?’ I bet there is, and I bet its German. In any case, consider it used here.

      That may be the most strawmanalicious thing I’ve ever seen, and the misogyny was shot through it like chocolate through a cheesecake. You may have discovered the platonic ideal of a National Review article.

      • elm

        Wouldn’t German just string together all the words you used into one big word? So, thankyouforbringingthishorriblethingthatInonethelesswishI’dneverseen/readtomyattention.

  • chris

    What disturbs me about the “undue burden” standard is that it implies the existence of due burdens. “Substantial burden” would be pretty clear — and a lot more expansive — but who decides which burdens are due and which are undue? It sounds like a recipe for constitutional interpretation by personal preference.

    • mds

      but who decides which burdens are due and which are undue?

      Comfortably well-off misogynist men with political power.

    • wengler

      Due burdens are when sluts get what they deserve.

  • R. Johnston

    I never understood people who claimed that Casey preserved Roe rather than overruling it. It was obvious at the time of the decision, and it’s even more obvious by now, that Casey overruled Roe. Whether that overruling was inadvertent because O’Connor was never that bright and didn’t understand her own opinion, whether it was just a strategic power grab to set up a center of the Court even if that center had to be totally incoherent, or whether it was a strategically brilliant way of overruling Roe without having to deal with the consequences of finding that fetal rights outweigh a woman’s rights–i.e. without ruling that laws allowing abortion are unconstitutional–I’m not quite sure, but I’ve always been sure that Casey overruled Roe and I’ve never understood how anyone could believe otherwise.

    • Joe

      I need know what “overruling Roe” means. If it means that strict scrutiny isn’t the test any more, yes. If it means that (as with before Roe) Texas can ban all abortions from conception except for the life of woman, no it didn’t.

      The dig on O’Connor’s intelligence is charming but what the ruling did was clear — it allowed more abortion regulations. I’m sure she was aware of this, since she wrote portions of the opinion noting just that.

      And, Roe itself to a limited extent found fetal rights could outweigh women’s rights. Women can be blocked under Roe from post-viable abortions in various instances. The SC also allowed the state to selectively fund childbirth, upholding the Hyde Amendment even if the woman’s health was at risk. Why? To promote a state interest in fetal life.

      • Scott Lemieux

        Right — the rest I’ll respond to in a follow-up post, but O’Connor knew exactly what she was doing.

      • R. Johnston

        Personally I’d say that upholding the Hyde Amendment was inconsistent with Roe, but narrow enough that it could reasonably be viewed as not overruling Roe. Casey, on the other hand, pretty much directly overruled Roe. It entirely eliminated the need for the state to prove any interest in abortion regulation at all, much less a legitimate interest related to fetal life or maternal health, instead testing solely the burden placed on women with an exceedingly strong presumption of minimal burden.

        Casey eliminated balancing, both as written and in actual practice of implementation, and allows for entirely and admittedly whimsical regulations that serve no purpose at all except to harass women.

        This is where I think O’Connor likely did not understand her own opinion. She knew she was overruling Roe, replacing it with a substantively different legal standard rather than merely tinkering with how Roe was applied, but I don’t really think she foresaw or understood the implications of language that didn’t emphasize the need to test the government’s interest in regulation. I think she presumed that the government would still have to prove some sort of an interest for a regulation to be upheld, but that clearly has not been the case. Under Casey, abortion regulations that would fail the rational basis test are upheld if they’re not an undue burden, and you’ll have a hard time convincing me that O’Connor understood that that’s the opinion she was writing.

        • Joe

          “entirely eliminated the need for the state to prove any interest in abortion regulation at all”

          Not true.

          A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it

          Mere ‘whimsy’ doesn’t inform the choice. A key issue in Roe was that fetal life couldn’t be a reason before viability. Casey overturned rulings that upheld that rule. So, mere concern for fetal life could justify a first trimester limitation. But, not mere whimsy.

          You are reading a, I’m sorry, fictional broad reading and blaming O’Connor for it. I noted this in the past and didn’t convince you then. I doubt I will now. But, it isn’t O’Connor’s fault.

          • Joe

            “abortion regulations that would fail the rational basis test are upheld if they’re not an undue burden”

            like what? Protection of fetal life is a “rational basis.” It is not legitimate imho if it trumps woman’s health but that doesn’t make it “irrational” in a constitutional sense.

  • Everything, including speech, is subject to regulation. To the extent possible, the contours of these regulations should be determined through the political process. The pro-choice movement is hardly politically powerless. If it doesn’t agree with the regulations, it should make its case to the state electorate.

    I’d say the same to the gun nuts Second Amendment advocates.

    • BKP

      There are certain basic rights that I would never leave to discretion of any political process.

      Do you not agree?

      • Murc

        Everything is up to the discretion of the political process, tho.

        Get three-fifths of the country on your side and you can make it legal to hunt redheads for sport.

        • BKP

          Sure, but Pithlord said:

          should be determined through the political process

          Perhaps there is some nuance there that I’m missing, but I strongly disagree with the wording he used there, at least for certain possible regulations.

      • Big question. I think the British model of Parliamentary sovereignty works reasonably well, and is not demonstrably worse for human rights than a system with judicial review of legislation. On the other hand, that’s not the American system, never has been, and some judicial review may sometimes be a good thing.

        That being said, I don’t believe any right can ever be absolute. Generally courts should defer to the democratic process about the borderline — unless the interests affected are of groups with no real influence in the political process, or the issues are technical/procedural, such that the forensic process can really be said to be cognitively superior to the democratic one.

        Casey basically says the states can regulate, but not ban abortion, and the Court will decide when regulation goes too far. That allows some technocratic counter-majoritarianism, but it also allows for some debate in the public sphere.

        • Joe

          “the Court will decide when regulation goes too far”

          “The Court” so far found two laws “too far.” A spousal notification law and a ban on a certain procedure. The latter was largely overturned later. So, Scott is saying the test has no real teeth.

          Speech regulations are repeatedly overturned. The SC just started really overturning gun regulations, but still overturned two.

          The specific laws Scott is concerned about also burden disfavored minorities that justify more countermajoritarian judicial review. The fact so many laws are passed underline the political weaknesses of the class.

    • Norman Thomas

      Agreed, Pithlord.

      Everything is subject to some regulation, including guns, an explicit and recently upheld individual constitutional right….and also abortion, an implicit right.

      Why those who favor harsh gun laws can turn around and then say abortion is absolute without restiction to age timing, etc. is beyond me.

      • hv

        an explicit and recently upheld individual constitutional right

        Explicit? I’m not swallowing that one.

        Citation please.

        • Norman Thomas

          second amendment

          • hv

            No explicit reference for gun ownership there, sorry.

            • Norman Thomas

              “…the right of the people to keep and bear Arms…”

              I don’t understand what hairs you think you want to split here…

              • DocAmazing

                That right is predicated on those people being members of a well-regulated Militia, remember, Big Jim Al Gay Wrongful?

              • hv

                I wish to split the hairs of your leading ellipsis.

              • DrDick

                Nothing at all there about the right to own arms, only to keep and bear them. The phrasing would in fact aptly describe the Swiss national defense force where every adult keeps a government issued rifle (and uniform) in their home in case the country is ever invaded and they are all called up.

    • Scott Lemieux

      To the extent possible, the contours of these regulations should be determined through the political process.

      I thought you were a fan of the plurality opinions in Morgentaler? What you’re suggesting here is the opposite of that.

      • I’m not saying there can’t be any judicial review of the regulations. The regulations at issue in Morgentaler just created delay for no appreciable benefit — even from the perspective of protecting fetal life. And Beetz emphasizes that the setup of the abortion committees wasn’t consistent with adminsitrative law norms of preventing bias.

        I don’t read the plurality as saying that they’d strike down any regulations. Of course, the issue hasn’t come up since because the plurality view in Canada is that (a) some abortion regulation would be justified, but (b) it just isn’t worth making an issue of it. Sex-selective abortions might change this consensus, but then again they might not.

        • MPAVictoria

          Sex Selective abortions are already illegal in Canada. See the Assisted Human Reproduction Act of 2004 Section 5(e) I believe.

          • MPAVictoria

            Sorry this is incorrect. I was thinking about something else. Please ignore.

        • Scott Lemieux

          just created delay for no appreciable benefit

          You’ve just described mandatory waiting periods to a “T.” And, to me, that’s where Casey became immediately toothless.

          • ema

            And let’s not forget mandatory non-medical U/S, pre-op counseling sessions at propaganda centers, etc.

            Allowing states to legislate away the medical standard of care, just because the procedure happens to be a termination, goes beyond delay for no appreciable benefit, right into mandated malpractice territory.

          • MAJeff

            Let’s also add requiring medical providers to lie to women about a “link” between abortion and breast cancer.

  • wengler

    Democrats really need to push this message out the door:

    “Republicans are more concerned with enslaving women than creating jobs.”

    • Anonymous

      Slavery: the Republican Jobs Program. Truth in advertising.

    • Norman Thomas

      ???
      How does one get this from this discussion? Is it just that you wanna hate on people?

      • DrDick

        Adults who do not have control over their persons are generally referred to as slaves.

        • Norman Thomas

          You do not get to redefine terms.

          • R. Johnston

            And he isn’t. If the state controlled your uterus, you’d be a slave, just as you’d be if the state controlled your arms and legs. You may not have a uterus, but that really isn’t relevant unless you’re a sociopath incapable of empathy.

            • Norman Thomas

              Can’t be a slave…and to prove that this is an attempt to redefine terms….Slavery is unconstitutional and is not allowed.

              Just because you wish to stretch terms to make political hay doesn’t mean it’s so.

              • hv

                Slavery is unconstitutional and is not allowed.

                I’d love to hear your narrative on the Civil War, then.

  • Norman Thomas

    “That right is predicated on those people being members of a well-regulated Militia…”

    Scotus says you’re wrong. While the preamble gives the probably necessity at the time it was written, there is no requirement that anyone be in a militia.

    So, if you’re advocating for militias, I’m with you. Just not necessary

    • hv

      Scotus says you’re wrong.

      Wait, your inability to use the reply button is allowing you to move the goalposts.

      We were discussing what is explicitly protected.

      Even the SCOTUS knows it isn’t explicit… that’s why there are paragraphs of linguistic analysis in the majority opinion of DC v Heller.

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