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Anthony Kennedy’s Right to Choose
The justice who cares about dignity and autonomy should vote against Texas’ abortion law.
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Ever since the court announced on Friday—after eight years of silence on the issue—that it was going to hear a major abortion case, all eyes have been fixed on Justice Anthony Kennedy. He will certainly be the decisive vote in Whole Woman’s Health v. Cole this summer. On this issue, among so many others, it’s a foregone conclusion that wherever Kennedy goes, the court will follow.
It is hardly an exaggeration to say that Cole will be the biggest abortion case the court has heard in decades, and its ruling on HB 2—Texas’ huge omnibus abortion bill from 2013—will determine whether Roe v. Wade is still the law of the land or the remains of a hollow promise. Already parts of the law that have gone into effect have reduced the number of clinics in Texas from 41 to 18. And if the court approves the two Texas restrictions at issue in Cole, there will be nine clinics left to serve a population of 5 million women of reproductive age.
Now, those of us who watch Kennedy in exchange for a paycheck tend to be conflicted about the signals he has sent on reproductive rights. Some, like Ian Millhiser of ThinkProgress, are heartened by the fact that Kennedy voted to grant a stay preventing HB2 from immediately going into effect, which might suggest that he at least understands that the shuttering of 75 percent of Texas clinics is not a trivial matter. The fact that he twice joined with the four more liberal justices to keep parts of HB2 from going into full effect before the court could look at it means that he takes its consequences seriously.
The stakes in this case go far beyond the admitting privileges and ambulatory surgical center requirements at issue; they go to the very core holding in Planned Parenthood v. Casey, the 1992 case establishing that the constitutional right to abortion could not be encumbered by state regulations that have no real connection to a legitimate state purpose. States may not put an “undue burden” on the right to terminate, even if that phrase remains completely incomprehensible. And as Jessie Hill wrote in September, “Kennedy, one of the authors of the joint opinion in Casey, must think ‘undue burden’ means something, and the facts in the Texas and Mississippi cases, in particular, are extreme. If he is ever going to find an undue burden is imposed by a purportedly neutral health regulation, it is probably going to be in a case like these.”
[center]
[/center]
Ever since the court announced on Friday—after eight years of silence on the issue—that it was going to hear a major abortion case, all eyes have been fixed on Justice Anthony Kennedy. He will certainly be the decisive vote in Whole Woman’s Health v. Cole this summer. On this issue, among so many others, it’s a foregone conclusion that wherever Kennedy goes, the court will follow.
It is hardly an exaggeration to say that Cole will be the biggest abortion case the court has heard in decades, and its ruling on HB 2—Texas’ huge omnibus abortion bill from 2013—will determine whether Roe v. Wade is still the law of the land or the remains of a hollow promise. Already parts of the law that have gone into effect have reduced the number of clinics in Texas from 41 to 18. And if the court approves the two Texas restrictions at issue in Cole, there will be nine clinics left to serve a population of 5 million women of reproductive age.
Now, those of us who watch Kennedy in exchange for a paycheck tend to be conflicted about the signals he has sent on reproductive rights. Some, like Ian Millhiser of ThinkProgress, are heartened by the fact that Kennedy voted to grant a stay preventing HB2 from immediately going into effect, which might suggest that he at least understands that the shuttering of 75 percent of Texas clinics is not a trivial matter. The fact that he twice joined with the four more liberal justices to keep parts of HB2 from going into full effect before the court could look at it means that he takes its consequences seriously.
The stakes in this case go far beyond the admitting privileges and ambulatory surgical center requirements at issue; they go to the very core holding in Planned Parenthood v. Casey, the 1992 case establishing that the constitutional right to abortion could not be encumbered by state regulations that have no real connection to a legitimate state purpose. States may not put an “undue burden” on the right to terminate, even if that phrase remains completely incomprehensible. And as Jessie Hill wrote in September, “Kennedy, one of the authors of the joint opinion in Casey, must think ‘undue burden’ means something, and the facts in the Texas and Mississippi cases, in particular, are extreme. If he is ever going to find an undue burden is imposed by a purportedly neutral health regulation, it is probably going to be in a case like these.”
Source.