What You Need to Know About the Abortion Rights Case at SCOTUS Next Week

7 thoughts on “What You Need to Know About the Abortion Rights Case at SCOTUS Next Week”

1. This is a vital case for effectively upholding Roe v Wade. TRAP laws (Targeted Regulation of Abortion Providers) are specifically targeted against abortion facilities, and there has been no documented case of one of them actually helping women to receive safer care. No other type of clinic that performs similar (or greater) risk procedures has been targeted with the same restrictions.

   Under current Supreme Court precedent, states can enact medically necessary regulations on abortion clinics, but they cannot be punative. Unfortunately, they didn't define exactly what a good regulation would look like… There was some skepticism on the Court over the Constitutionality of these laws, but no case to present them with an opportunity to clarify.

   My guess is this goes 5-3 or perhaps 6-2, with Kennedy and/or Roberts siding with the liberals. Without Scalia goading Kennedy on, I think the liberals will have more sway with him. When Kagan came on, the talk was about her ability to act as a counter-balance to Scalia with Kennedy, but it was clear that Scalia came out much the stronger in that balance.

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   1. From your lips to Kennedy's vote.  to win this 5-3 0r even 6-2 would be a body blow to the right wing.

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      1. Kennedy's Stenberg II opinion was dripping with paternalism about women's need to be protected from themselves when choosing abortion, and Roberts is another Catholic man to the right of Kennedy.  I predict  4-4 tie, with Hillary's new justice deciding the case when Ohio's similar restrictions reach the SCOTUS. 

         Back in reality, a challenge to a law as an undue burden should require the state to prove how the law is due.  Silly me, thinking words in lawsuits should have some resemblance to their common usage.

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         1. I'm with Daft.  Kennedy is not your huckleberry.  I think he's a rape/incest/life of mother kind of guy.

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2. There's a great review of the case at SCOTUSBlog.  As an aside, there's always a great review of <insert case here> at that blog.  If you have any interest in outcomes at the court, it's a really awesome source of information.

   What the article doesn't mention is that the Fifth Circuit took action in another TRAP law case, June Medical Services, on Wednesday (Texas and Louisiana share the same appeals court).  A lower court issued an injunction telling the state not to enforce the law.  The circuit court stayed that injunction (the legal math is injunction = don't do; stay + injunction = don't don't do = do), allowing the state to close all but one clinic.

   The losers (women) in the case will ask the Supreme Court to lift the Fifth’s stay, putting the original injunction back in place. This will get decided before Whole Women’s Health and may be an indication of what the decision will be in that case.

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3. Love SCOTUSblog. The Fifth Circuit is comprised of Texas, Louisiana and Mississippi. 

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4. Why Courts Shouldn’t Ignore the Facts About Abortion Rights

   Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit struck down Wisconsin’s admitting-privileges law last year in an opinion that used comparative data to show how singling out abortion made no objective sense. (Wisconsin doesn’t require admitting privileges for any other outpatient procedure, including those demonstrably more dangerous.)

   Courts, he said, should weigh the medical evidence behind a regulation against its impact. When the evidence is “feeble” and the burden substantial, the burden is undue, he concluded.

   The Fifth Circuit acknowledged Judge Posner’s approach and rejected it. “In our circuit we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” the court said in an earlier round in the Texas litigation.

   Evidence matters to courts. Courts take evidence all the time. That’s why we have trials, and judges. The notion that when it comes to restricting abortion, facts shouldn’t count, is to give “abortion exceptionalism” a new meaning. It is a meaning the Supreme Court will reject if it is true to its precedents and principles.

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