— Ben Moss (@BenKMoss) June 27, 2016
When SCOTUS struck down Texas’ HB2 regulations yesterday, Richard Mayhew predicted “A lot more from lawyers later.” Here’s a couple of respected legal analysts. Linda Greenhouse, in the NYTimes, “The Facts Win Out on Abortion“:
… There is no poetry in the 40-page opinion, which strikes down a Texas law that would have closed most abortion clinics in the state in the name of protecting women’s health. The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion…
Although nearly one-third of American women will have an abortion in their lifetime, a goal of abortion opponents has been to carve out abortion practice from ordinary health care, to ghettoize and delegitimize it. Those days are now over, too. Singling out abortion for regulation that can’t be justified on medical grounds is unacceptable, as Justice Ruth Bader Ginsburg emphasized in a concurring opinion.
When I first read Justice Breyer’s opinion, my sense of relief struggled against a feeling that something nonetheless was missing: not necessarily the aspirational rhetoric of the Casey decision but some explicit acknowledgment of what it means to women’s equality and dignity not to be trapped in an unwanted pregnancy.
Then I realized that while the court in Casey called upon “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” it didn’t really work out. Maybe, after all, this is not a moment for poetry, but for facts. There’s not much in Justice Breyer’s opinion that’s quotable. But there’s not much that’s debatable either, and that’s what matters.
Linda Hirshman, in the Washington Post, “How Ruth Bader Ginsburg just won the next abortion fight”:
She has written into law the factual finding that abortion is safe.
… The strategy of purporting to help women, which has, until today, been stunningly successful, started with the attack on so-called “partial birth abortion” in 1995. It reached its high water mark with Justice Anthony Kennedy’s hotly contested 5-to-4 decision upholding the restrictions on such procedures in Gonzales v. Carhart in 2007. Kennedy found medical disagreement about the safety advantages of the procedure. Importantly, he then deferred to the findings of the legislature that women would be safer and better off without partial birth abortion…
… When the news broke that RBG was concurring, the initial reaction was puzzlement. Why would Ginsburg need to write separately from a pro-choice opinion by her liberal colleague Breyer? Looking at her concurrence, however, the explanation is clear.
The concurrence is less than two pages. She dismisses Texas’s argument about its interest in protecting “the health of women who experience complications from abortions,” by countering that “complications from an abortion are both rare and rarely dangerous.” She recites a laundry list of studies of how safe abortion is, and then she delivers the message: “So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.” [Emphasis added.]
She is writing into law the factual finding that abortion is safe, full stop. When the court turns to the Alabama law, with its “finding” that women need abortion to be restricted, she wants that future court to be able to cite to her opinion that they do not.
And finally, a healthcare provider, quoted in the NYTimes:
… Dr. Willie Parker, who as a roving doctor who performs abortions at two Alabama clinics in cities where he cannot obtain admitting privileges and at the one clinic in Mississippi, said with relief that the Texas decision was “a huge victory.”
After years in which ever more forceful anti-abortion laws spread in the South, he said, “now the chain reaction can go in the other direction.”…