Charles C. Camosy is an associate professor of theological and social ethics at Fordham University, focusing on biomedical ethics. Photo courtesy of Charles C. Camosy
This image is available for web publication. For questions, contact Sally Morrow.
Posted on 03/01/2016 4:03:33 PM PST by NYer
(RNS) On Wednesday (March 2), the most important abortion case since 1992’s Planned Parenthood v. Casey will be argued before the U.S. Supreme Court. Casey shifted away from Roe v. Wade’s focus on privacy and instead asked whether abortion restrictions were an “undue burden” on women.
The court, however, has not been clear about what “undue burden” means.
In 2007’s Gonzales v. Carhart, the last significant abortion case, swing voter Justice Anthony Kennedy joined the four conservatives in ruling that laws against partial-birth abortion were not an undue burden. Legal commentators, like CNN’s Jeffrey Toobin, have worried that Kennedy may have signaled that other restrictions might be constitutional as well.
Wednesday’s case, Whole Woman’s Health v. Hellerstedt, springs from a Texas law that added safety standards to abortion clinics in line with other surgical clinics. It requires physicians to have admitting privileges at the local hospital and stipulates that hallways must be wide enough for gurneys to wheel women into an ambulance, for example. Those who challenge the law as an undue burden argue the added expense will force clinics to close, and that the law is actually an attempt to restrict abortion access.
The case gets at the heart of the “undue burden” argument. The court could define it very specifically, in which case not only this Texas law but also dozens of other state laws may be affected.
Audio of the oral argument will be available at SCOTUSblog Wednesday. Here are five things to listen for:
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.
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.)
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.
Charles C. Camosy is an associate professor of theological and social ethics at Fordham University, focusing on biomedical ethics. Photo courtesy of Charles C. Camosy
This image is available for web publication. For questions, contact Sally Morrow.
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.
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.
Yes, this is the biggest abortion case in nearly 25 years. Some of our culture’s most cherished ideas and principles may be defined for generations to come.
Catholic ping!
SCOTUS.
Will any of them support religious charities that fund bringing more illegals, islamos and other bums to help destroy America?
We need less third world breeders here than we need more abortions.
I would be shocked if either Kagan or Sotomayor broke ranks. Its probably meaningless to see how they were involved in cases regulating other industries. Abortion is a sacrament to liberals so would be shocking if they vote the wrong way per liberal criteria. Liberals vote in lockstep. No way they vote opposite of what planned parenthood and liberals want to see happen.
For later.
Best case scenario without Scalia is a 4 to 4 split, in which case the court of appeals decision stands.
In addition to Scalia’s open seat, there are three Justices left on the Court who will be over 80 years old next year. The next President will decide the direction of the Court for the next 30 years. Either we will have a far left-wing liberal oligarchy ruling over us from the bench for another generation or we will not.
Be afraid. Be very afraid.
You are right. If Hillary is the next president she will install mindless liberal robotic justices who will new to the liberal line in every case before the court. The next president will probably appoint 3 justices. Even more if that president is reelected in 2020. This is a very important election year. The direction we take as a country could well send us far left if Hillary is elected.
Here is something else to keep you awake at night.
Under the 20th Amendment, the new Senate will be sworn in on January 3. The new President will not be sworn in until January 20.
If the Democrats retake the Senate, then Senate Majority Leader Chuckie Schumer will have three weeks to easily push through confirmation of Obama’s nominees for every court vacancy, from the Supreme Court down to the district courts.
Good point. If Dems win back the Senate, they and Obama will fill the Supreme Court seat, and various other federal court seats, between Jan. 3 and Jan. 20. Perhaps the GOP could try to filibuster the Supreme Court nominee, as I understand the filibuster was done away with for other nominees but left in place for Supreme Court nominees. Stay tuned.
My wife was hoping to go to DC tomorrow to join in the public gathering g outside the SCOTUS. Alas, my kid broke his elbow and needs surgery in the morning so she can’t go.
SCROTUS.
The BEST we can hope for is 4-4 which will have no precedential value. The worst? 5-3 against us.
Thank you for referencing that article NYer. Please bear in mind that the following critique is directed at the article and not at you.
Patriots, all the frivolous considerations that the Supremes are giving to the fictitious constitutional right to have an abortion are nothing but smoke-and-mirrors to disguise the fact that the states have never amended the Constitution to expressly protect the so-called, PC right to have an abortion.
Look at it this way …
The Founding States had originally decided that the states did not have to respect the rights expressly protected by the Bill of Rights (BoR). Only the federal government had to respect constitutionally enumerated rights.
So even if the states had included the express right for women to have an abortion in the BoR, the states did not have to respect such a right.
It wasn’t until the states ratified the 14th Amendment (ratified under very questionable circumstances) that the states obligated themselves to respect the rights that the states amend the Constitution to expressly protect.
And it remains that since the states have never amended the Constitution to expressly protect the so-called right to have an abortion that corrupt, state sovereignty-ignoring activist justices actually never had a constitutionally enumerated right to have an abortion to throw at the states when they wrongly decided Roe v. Wade against the states imo.
The bottom line is that corrupt justices not only stole legislative powers to “amend” the so-called right to have an abortion to the Constitution from the bench, but they breached the Founding States’ division of federal and state government powers to steal 10th Amendment-protected state legislative powers to do their dirty work. Ironically, this is the same power that some states were properly using to say no to abortion.
Remember in November !
When patriots elect Trump, Cruz, or whatever conservative they elect, they need to also elect a new, state sovereignty-respecting Congress that will not only work within its Section 8-limited powers to support the new president, but also protect the states from federal government overreach, unconstitutional federal funding for abortion an example of such overreach.
Also, consider that such a Congress would probably be willing to fire state sovereignty-ignoring, pro-abortion activist justices.
When Harry Reid unilaterally abolished the filibuster for all other presidential nominees, he left it in place for Supreme Court nominees for the simple reason that there were no vacancies on the Court at the time.
If the Democrats take back the Senate the first thing that Chuckie Schumer will do is unilaterally abolish the filibuster for Supreme Court nominees. Five minutes later, the Democrats will vote to confirm Obama's nominee to the Court.
No way they vote opposite of what planned parenthood and liberals want to see happen.
*********
PP may secretly want this to be upheld... they have the money to build clinics that meet safety standards (your money and mine) and it will have the effect of quashing many competitors.
I think it’s asking too much to hope for anything from Kagan or Sotomayor.
But Kennedy could conceivably be touched by the death of Scalia. After one of Kennedy’s boneheaded votes, he actually went to Scalia’s house, and Scalia threw him out. “I don’t want to talk to you.” I.e., Kennedy’s decisions are emotional. He wanted emotional comfort because he knew he’d decided wrongly.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.