Yesterday, the Fifth Circuit upheld the Texas near-ban on abortion. So either Kennedy is going to have to agree to give Casey some actual content, or admit that Roe is effectively overruled:
In 1992, the supreme court’s decision in Planned Parenthood v Casey nominally upheld Roe v Wade, but it replaced Roe’s clear rules with a holding that abortion regulations, even in the first trimester of pregnancy, were unconstitutional only if they constituted an “undue burden”. As applied by federal courts, the Casey standard has been a disaster, allowing states to pass increasingly restrictive rules.
The three judges who wrote the fifth circuit opinion – all nominated, you’ll be shocked to discover, by George W Bush – make good use out of the extent to which the supreme court has undermined Roe in the name of saving it. The opinion is appalling if you care about the equality and autonomy of American women, but it’s not stupid. It’s written in a way designed to appeal to Anthony Kennedy, the only member of the Casey majority still on the court, and the swing vote in abortion cases.
Casey’s biggest sin was ruling that Pennsylvania’s 24-hour waiting period was constitutional. As the fifth circuit opinion observes, the Casey decision acknowledged that the regulation would be “particularly burdensome” for poor rural women and conceded that it would have “the effect of increasing the cost and risk of delay of abortions.” And yet, justices still found that it was not an undue burden. The road between this and So what if women in west Texas have to drive 150 miles to find an abortion clinic? is shorter than it should be.
This reasoning doesn’t guarantee a supreme court ruling in favor of HB2 – the Texas regulations are more restrictive in their cumulative impact than the waiting period and the other regulations upheld in Casey. But Casey put a loaded weapon in the hands of opponents of safe, legal abortions, and the fifth circuit has now pointed it squarely at the reproductive freedom of American women.
So the access many American women will have to safe abortions will now rest on the most conservative member of the Casey triad. What could possib-lie go wrong?