(WNS)--Republican-appointed Justice Anthony Kennedy affirmed his legacy
of protecting Roe v. Wade June 27 by providing the decisive vote to
strike two provisions of a Texas law regulating abortion centers.
Kennedy also provided the decisive vote in Planned Parenthood v. Casey, a
1992 ruling that upheld Roe.
The ruling from Kennedy and the liberals—Justices Ruth Bader Ginsburg,
Stephen Breyer, Sonia Sotomayor, and Elena Kagan—said abortion was safer
than childbirth, long a talking point of abortion groups like Planned
Parenthood. Kennedy’s vote meant that the late Justice Antonin Scalia,
had he lived through this term, would not have changed the 5-3 outcome.
Two provisions in the Texas law, H.B. 2, were at issue: One required
abortion centers to meet ambulatory surgical center (ASC) standards and
another required abortionists to have admitting privileges at a nearby
hospital.
The Texas legislature passed the measures in response to the conviction
of Pennsylvania abortionist Kermit Gosnell, whose center was a horror
scene aside from the abortions he performed. A Philadelphia jury
convicted Gosnell of first-degree murder in the deaths of three babies
born alive and manslaughter in the death of a patient. The grand jury
investigating that case recommended states require abortion centers to
meet ASC standards.
“Gosnell’s behavior was terribly wrong,” Breyer wrote for the majority.
“But there is no reason to believe that an extra layer of regulation
would have affected that behavior. Determined wrongdoers, already
ignoring existing statutes and safety measures, are unlikely to be
convinced to adopt safe practices by a new overlay of regulations.”
Justice Samuel Alito, writing a dissent joined by Chief Justice John
Roberts and Justice Clarence Thomas, said a similar law in Pennsylvania
might have shut down Gosnell’s facility before he could commit his
crimes.
“If there were any similarly unsafe facilities in Texas, H.B. 2 was clearly intended to put them out of business,” Alito wrote.
But the Supreme Court second-guessed the Texas legislature here,
tossing out the state’s assertion that the regulations were medically
necessary and ruling that judicial precedent required removing obstacles
from women seeking abortions. Pro-life lawyers anticipated this loss
because if the court had been tied, the justices likely would have
announced that soon after the March arguments in the case.
Nevertheless, the ruling sets a mess of new legal standards for state
abortion regulations, and Justice Clarence Thomas, in a clear-eyed
dissent, said it will “surely mystify lower courts for years to come.”
“As the court applies whatever standard it likes to any given case,
nothing but empty words separates our constitutional decisions from
judicial fiat,” Thomas wrote.
At the arguments in this case in March, Alito wondered whether the
Supreme Court was “qualified” to determine abortion’s medical risks and
what would mitigate them. Now the answer is clear: The court believes it
is qualified.
Typically in rulings, the Supreme Court cites and interprets relevant
laws on the issue at hand. But on abortion there are no federal laws to
cite: The Supreme Court is the author of legalized abortion. The lack of
statutory authority in striking a state law reveals the court’s
legislative bent over the last 40 years on this issue.
Citing only its own precedents, the court wrote that states may “insure
maximum safety for the patient” (Roe v. Wade) but must not “place a
substantial obstacle in the path of a woman’s choice” or “impose an
undue burden on the right” to an abortion (Planned Parenthood v. Casey).
Thomas’ dissent highlights how the court is making up its abortion
jurisprudence as it goes along. The decision “perpetuates the court’s
habit of applying different rules to different constitutional
rights—especially the putative right to abortion.”
“Our law is now so riddled with special exceptions for special rights
that our decisions deliver neither predictability nor the promise of a
judiciary bound by the rule of law,” Thomas wrote.
Much of the ruling focused on facts. Did abortion facilities shut down
as a result of the new law? Could the remaining facilities provide a
sufficient number of abortions to meet demand? The Supreme Court
disregarded the facts from the 5th U.S. Circuit Court of Appeals, which
upheld H.B. 2, instead embracing the testimonies from the lower district
court, which struck down the law. The Supreme Court concluded that H.B.
2 “provides few, if any, health benefits for women.”
This ruling also imposed a new, higher constitutional bar for state
laws regulating abortion. In other words, regulation of a business would
have less legal standards to meet than regulation of an abortion
facility.
“The state’s burden has been ratcheted to a level that has not applied for a quarter century,” Thomas wrote.
One tiny silver lining for pro-lifers in Breyer’s ruling: He reiterated
the Casey precedent that the state may regulate abortion when an infant
becomes viable.
“[W]e now use ‘viability’ as the relevant point at which a state may
begin limiting women’s access to abortion for reasons unrelated to
maternal health,” the court wrote.
This was the final day of the Supreme Court’s term. The court will begin sitting again in October.
Courtesy: WORLD News Service
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