Next June, the Supreme Court will determine whether Texas’s draconian restrictions on abortion are constitutional. If the statute is upheld, Roe has been overruled whether Kennedy says it explicitly or not:
In theory, the “undue burden” standard could have provided a fairly robust protection of a woman’s right to choose to have an abortion; in practice, it has not.
Among other things, the court held in Casey that a mandatory waiting period for a woman seeking an abortion was constitutional, although the restriction placed a significant burden on some women – particularly poor and/or rural women – while not advancing any legitimate state interest in the protection of its citizens. Mandatory waiting periods are simply designed to make abortion maximally inconvenient and provide no heath benefits to the women subjected to them. As then-justice John Paul Stevens wrote in his opinion in Casey: “The mandatory delay … appears to rest on outmoded and unacceptable assumptions about the decision-making capacity of women.”
The Texas statute is the obvious end point of a ruling like Casey; it’s the culmination of a process in which anti-abortion forces have piled regulation upon regulation until they have forced most of the state’s abortion clinics to close. In the case of Texas, HB2 was upheld by the 5th Circuit Court of Appeals even though it would place a major burden on the reproductive rights of women outside of a handful of urban centers, and despite the fact that the law has no plausible connection to protecting a woman’s health. The clinics are not being closed because they don’t provide safe abortions, but because they do.
As with so many cases, it is nearly certain that the fate of a woman’s right to choose in the United States will come down to Justice Anthony Kennedy, the only member of the five-justice Casey majority still on the court. Supporters of Roe have ample reason to be pessimistic. Kennedy – always the shakiest member of the Casey five – has upheld 20 of the 21 abortion restrictions to come before him as a US supreme court justice under the new “undue burden” standard. It’s possible that he could vote to uphold the Texas statute and continue the process of asserting that Roe remains in force while making it devoid of any meaningful content.
I would estimate the chances that HB2 is Kennedy’s breaking point at about 60/40. I don’t think Kennedy would want to write an opinion overruling Roe. But is he capable of writing an opinion upholding HB2 and hence overruling Roe sub silentio while convincing himself that he’s not actually doing it? Sadly, yes.