February 29, 2016

5 things to watch when the Supreme Court hears its biggest abortion case in 25 years (COMMENTARY)

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A view of the Supreme Court on Oct. 7, 2014.  Religion News Service photo by Lauren Markoe

A view of the Supreme Court on Oct. 7, 2014. Religion News Service photo by Lauren Markoe

(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:

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.

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

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

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.

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.

(Charles C. Camosy is associate professor of theological and social ethics at Fordham University. He is author of Beyond the Abortion Wars.)

  • Rob

    What a slanted article. The issue is being presented here under the guise of protecting women’s health. That is not true. These measures are to restrict access to abortion. At least be honest about the issues.

    Oh, and it would be nice to avoid the false dichotomy of pretending that the only choices are accessible abortion OR protecting women’s health.

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  • yoh

    The author is notorious for his clear bias against abortion rights. Of course he ignores the fact that the restrictions have zero to do with safety. Even medical professional organizations oppose them.

    The reference to Kermit Gosnell was a dead giveaway we are dealing with someone uninterested in facts. Gosnell could have only operated in a climate of fear created by nonsense restrictions imposed on abortion providers. With fewer legitimate providers around poor women were forced into going to unsafe hacks like Gosnell. The authorities did little to stop him despite numerous complaints by medical professional agencies because it was good pr for anti choice grist mills.

    Texas is already creating the atmosphere for more Gosnells as well as endangering thousands of women who try to self abort. A major health hazard relatively unseen in 40 years.

  • Eleanor

    I think the article was fair. Too few articles mention that these laws came about because of the Kermit Gosnell case in Philly. I live in Pennsylvania, and many pro-choice and pro-life individuals alike were horrified by what happened and called for abortion clinic regs to protect women from monsters like him.

  • yoh

    Of course the article ignores the fact that the restrictions have zero to do with safety. Even medical professional organizatio

    The reference to Kermit Gosnell was a dead giveaway we are dealing with someone uninterested in facts. Gosnell could have only operated in a climate of fear created by nonsense restrictions imposed on abortion providers. With fewer legitimate providers around poor women were forced into going to unsafe hacks like Gosnell. The authorities did little to stop him despite numerous complaints by medical professional agencies because it was good pr for anti choice grist mills.

    Texas is already creating the atmosphere for more Gosnells as well as endangering thousands of women who try to self abort. A major health hazard relatively unseen in 40 years.

  • … 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.

    We all know that the purpose for this law has nothing to do with safety. It is intended to close abortion clinics in order to limit access to abortion. It mostly affects poor women who cannot afford to go to a more progressive locale.

    Roe v Wade is hanging from a thread.

  • This has nothing whatsoever to do with Gosnell. Nor does the law remedy anything associated with Gosnell. This is about restricting access to abortion by poor women.

  • Chris1122

    Though few seem to be aware of this fact, Roe has already been replaced by Casey (a very different decision with a very different view on abortion restrictions) way back in 1992: http://www.motherjones.com/politics/2016/02/supreme-court-decision-mess-abortion-rights

    Roe is no longer than law of the land. What we are arguing about is what kinds of laws which result in abortion being less available are undue burdens.

  • Chris

    This simply isn’t true. Countries which largely ban abortion (like Ireland and Chile) have better maternal health outcomes than countries, otherwise similar, which have lots of legal abortions.

    Want to have good outcomes for women? The data says have significant abortion restrictions and have good social welfare.

  • yoh

    Tell that to the woman in Dublin who died because doctors were too scared to perform a life saving abortion because of the legal restrictions. The women injured, maimed or dead due to unsafe and illegal abortions don’t get counted when one talks of maternal health stats. You are being dishonest here. Abortion restrictions endanger women’s health. They take personal and medical decisions out if the hands of the most responsible people.

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  • Chris

    Perhaps you joined the pro-abortion clamor for Ireland to change its abortion laws rather than look at the actual medical facts of the case? http://www.thejournal.ie/savita-inquest-verdict-reaction-877142-Apr2013/

    Of course, medical facts are seldom important–and often inconvenient–for those who simply interested in more abortion by any means necessary.

  • Barrie

    Thank you. Desperate women will do what they’ve done for millennia. If there is no access to safe abortion, they’ll take matters into their own hands — and we’ll see back alley abortions, the ingestion of every herb women have taken for millennia to end a pregnancy (no matter how dangerous and unreliable) and every other possible approach. If we’re going to talk about women’s safety, let’s look at the number who died (including my aunt) from the infections brought on by a coat hanger. http://www.huffingtonpost.com/2014/04/03/back-alley-abortions_n_5065301.html

  • Valerie Lee

    Why would you suggest the remedy for Gosnell is to regulate abortion clinics. Gosnell certainly could not be thought of as an abortion clinic. He’s the alternative women face when legal clinics are not available to poor women.

  • Terry

    So if I follow the logic here of the pro-choice people, then the clinic where I have a colonoscopy should not have to have doors and hallways wide enough for an emergency gurney if something goes wrong. That could limit my access to a elective procedure which might save my life. Why in the world would anyone accept ANY outpatient facility that fails to meet these standards of care? The hospital admission requirement is equally critical for these facilities. Unless the abortion doctor has that, he can’t bring in the patient who he just maimed and she has a lower survival chance because it takes time to discover what is wrong before they can treat her. Get your head out of the sand and look at REAL health care, not just abortion as some sacred cow. If these facilities are not built to basic health care standards, they should fix them or close. How hard is that to figure out?

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  • yoh

    You are so full of it here. No outpatient facility had to put up with these kinds of rules, EXCEPT abortion providers. These are not basic health requirements. They are onerous and unnecessary rules done specifically to attack access to abortion.

  • yoh

    Nope. The Irish authorities did whatever they could to avoid criticizing the anti abortion law.

    It’s telling you engage in s1utshaming. It makes no difference why a woman has an abortion. It is not your body nor required your input or approval. The anti choice pov is all about pretending alleged moral superiority overrides the privacy and choices of others. Narcissistic nonsense.

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