Analysis Law and Policy

Justice Kennedy Can Save ‘Roe,’ But Will He?

Jessica Mason Pieklo

Supreme Court Justice Anthony Kennedy may be the last thing standing between religious conservatives and constitutionally protected abortion rights.

In 1992, Justice Anthony Kennedy was part of a coalition of Supreme Court justices that together forged a compromise over abortion rights in Planned Parenthood v. Casey. Now, 23 years later, Justice Kennedy is once again the fulcrum of abortion politics on the Supreme Court. And it is his Casey compromise in the balance, this time in Whole Woman’s Health v. Cole, which the Court agreed to hear Friday.   

Whole Woman’s Health challenges the constitutionality of targeted regulations of abortion providers, also known as TRAP laws. These laws have one specific purpose: to close abortion clinics by making it too cumbersome for them to keep operating.

Texas’ HB 2 is a monster of an anti-abortion omnibus bill enacted in 2013 after a series of special legislative sessions designed to ram the bill through to passage. The Roberts Court will only look at two of its provisions: a requirement that all doctors performing abortions have admitting privileges at nearby hospitals, and a requirement that all abortion clinics meet the same architectural standards as ambulatory surgical centers.

After protracted legal battles with reproductive rights advocates who filed lawsuits against the provisions, the Fifth Circuit Court of Appeals, astonishingly, held the requirements constitutional in Texas’ Whole Woman’s Health case but unconstitutional in a case challenging an almost identical law in Mississippi that would close the only clinic in the state. That case, Currier v. Jackson, was also part of the Court’s conference Friday that resulted in it taking up Whole Woman’s Health v. Cole. So far, the Court has not said whether or not it will hear the Mississippi case as well.

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The very fact that the same federal appeals court, albeit with a different panel of judges, can come to two different conclusions as to whether nearly identical abortion restrictions are undue burdens is pretty illustrative of the mess courts have made of that standard since Casey.

In 1989, a plurality of justices called the framework laid out in Roe v. Wade that prevented government regulation of abortion rights in the first trimester “rigid and unworkable.” Just two years before that, then-President Ronald Reagan called on the Court to overturn Roe altogether, nominating prominent abortion-rights foe Robert Bork to the Supreme Court. Liberals successfully blocked Bork’s nomination and Anthony Kennedy took the open seat, a turn of events that eventually led to the Casey compromise in 1992.

The Casey compromise replaced Roe v. Wade’s trimester framework for when and how states could regulate abortion with a two-part undue burden test, designed to balance the interests of the state in promoting fetal life—a key for conservatives—with preserving the interests of a pregnant person to terminate their pregnancy without unnecessary interference from the state. Specifically, Casey defines an undue burden as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The opinion further explains: “[a] statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”

That standard was watered down considerably in the 2007 decision Gonzales v. Carhart, which upheld the so-called federal Partial-Birth Abortion Act and held that courts should defer to legislators with regards to matters of scientific dispute, opening the door for a flood of junk science in state legislatures to support anti-abortion laws like so-called heartbeat bans and restrictions on medication abortions. There has been so much hyper-regulation, in fact, that many advocates question whether Roe holds meaning anymore. This summer, we will know for sure.

Should the Roberts Court rule for the states and against abortion providers and their patients, the result would be devastating—not just for Texas, but nationwide. Clinics in places like Alabama and Wisconsin that have remained open thanks to court orders blocking similar clinic closure laws from taking effect would be forced to close. States could turn to Mississippi as a model for regulating abortion clinics out of existence within their borders, the Constitution be damned.

Justice Kennedy has not cast a vote for abortion rights since joining the Casey compromise. That should make reproductive rights advocates nervous. But it’s not a sign we are going to lose. In fact, there’s plenty of reasons to think Justice Kennedy is on our side here. For real.

To begin with, the law is clearly on our side, and for Justice Kennedy that will matter. Unlike Gonzales, which focused on one specific abortion procedure, the provisions at issue in Whole Woman’s Health target abortion clinics generally. Supporters of the law will likely argue that it serves the same function in “advancing women’s health” and should be seen, like the federal Partial-Birth Abortion Act, as just more steps toward that goal. The problem for supporters is the evidence in Whole Woman’s Health just doesn’t exist to support those claims, even under Gonzales‘ lenient evidentiary standards.

Casey allows states to restrict abortion to “protect the unborn” prior to viability, and to even try and persuade a patient out of the procedure. But while it is clear that a state can certainly try and dissuade a patient from having an abortion, the decision is also very clear that the state cannot create obstacles for accessing an abortion. In other words, the state has to prove the merits of its argument that childbirth is a better choice for the patient than an abortion. With evidence. It’s not enough for anti-abortion lawmakers in states like Texas or Mississippi to simply assert their clinic-closing regulations will advance patient health and safety. They need the data to back that up.

This limit on state power is absolutely critical, and one that was completely ignored by the Fifth Circuit when it ruled against abortion providers in Whole Woman’s Health. The Casey opinion may authorize the government to protect potential life, but it must do so by means that also recognize and preserve women’s “personal dignity and autonomy.”

Laws that close clinics don’t dissuade a patient who needs an abortion from getting one. They just prevent her from obtaining one. That is a point made blisteringly clear in Whole Woman’s Health’s petition for review and one on which even conservative legal scholars agree. 

As importantly, the Casey compromise is, like Kennedy’s decision last summer striking same-sex marriage bans, grounded in the idea that a person’s dignity is inextricably linked to their liberty. In the case of abortion rights, that means preserving the ultimate ability of the patient to make the decision whether or not to abort. Closing clinics takes that ultimate decision away from the patient and gives it back to the state—and, in doing so, violates that fundamental link between liberty and dignity that is so important for Justice Kennedy.

It is clear Justice Kennedy has grave reservations about abortion. In Gonzales he bought into the junk science of “abortion regret syndrome” and called doctors abortionists. But he ultimately held his line and re-affirmed both Roe and Casey, and I would expect him to do the same here.

Of course, a lot has changed since 1992. Justice Samuel Alito—who as a federal appeals court judge drafted a dissenting opinion in Casey arguing for the constitutionality of spousal notification laws when the case was in the appellate circuit—replaced the moderate Justice O’Connor. John Roberts, who worked in the Reagan administration on the failed Bork nomination, is now the Chief Justice. Much like in 1992, abortion politics is front and center in the cultural and electoral conversation but unlike then, there is no coalition of moderates on the bench.

Instead, the Court is split evenly on overturning Roe and re-criminalizing abortion rights, with Justice Kennedy still right there in the middle.

It’s a lot of power, to be able to dictate the fate of pregnant people’s constitutional rights. And the idea that one man potentially has the ability to say whether clinics stay open or closed should worry all of us, pro-choice or not. But ultimately I think that Justice Kennedy is a conservative, not a crusader. Like the other conservatives who have called on the Court to reverse the Fifth Circuit’s decision in Whole Woman’s Health, he will understand that closing abortion clinics is not advancing patient safety, no matter how it’s spun.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Roundups Politics

Campaign Week in Review: Republican National Convention Edition

Ally Boguhn

The Trump family's RNC claims about crime and the presidential candidate's record on gender equality have kept fact-checkers busy.

Republicans came together in Cleveland this week to nominate Donald Trump at the Republican National Convention (RNC), generating days of cringe-inducing falsehoods and misleading statements on crime, the nominee’s positions on gender equality, and LGBTQ people.

Trump’s Acceptance Speech Blasted for Making False Claims on Crime

Trump accepted the Republican nomination in a Thursday night speech at the RNC that drew harsh criticism for many of its misleading and outright false talking points.

Numerous fact-checkers took Trump to task, calling out many of his claims for being “wrong,” and “inflated or misleading.”

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 Among the most hotly contested of Trump’s claims was the assertion that crime has exploded across the country.

“Decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement,” Trump claimed, according to his prepared remarks, which were leaked ahead of his address. “Homicides last year increased by 17 percent in America’s 50 largest cities. That’s the largest increase in 25 years. In our nation’s capital, killings have risen by 50 percent. They are up nearly 60 percent in nearby Baltimore.”

Crime rates overall have been steadily declining for years.

“In 2015, there was an uptick in homicides in 36 of the 50 largest cities compared to the previous years. The rate did, indeed, increase nearly 17 percent, and it was the worst annual change since 1990. The homicide rate was up 54.3 percent in Washington, and 58.5 percent in Baltimore,” explained Washington Post fact checkers Glenn Kessler and Michelle Ye Hee Lee. “But in the first months of 2016, homicide trends were about evenly split in the major cities. Out of 63 agencies reporting to the Major Cities Chiefs Association, 32 cities saw a decrease in homicides in first quarter 2016 and 31 saw an increase.”

Ames Grawert, a counsel in the Brennan Center’s Justice Program, said in a statement posted to the organization’s website that 2016 statistics aren’t sufficient in declaring crime rate trends. 

“Overall, crime rates remain at historic lows. Fear-inducing soundbites are counterproductive, and distract from nuanced, data-driven, and solution-oriented conversations on how to build a smarter criminal justice system in America,” Grawert said. “It’s true that some cities saw an increase in murder rates last year, and that can’t be ignored, but it’s too early to say if that’s part of a national trend.” 

When Paul Manafort, Trump’s campaign chairman, was confronted with the common Republican falsehoods on crime during a Thursday interview with CNN’s Jake Tapper, he claimed that the FBI’s statistics were not to be trusted given that the organization recently advised against charges in connection with Hillary Clinton’s use of a private email server during her tenure as secretary of state.

“According to FBI statistics, crime rates have been going down for decades,” Tapper told Manafort. “How can Republicans make the argument that it’s somehow more dangerous today when the facts don’t back that up?”

“People don’t feel safe in their neighborhoods,” said Manafort, going on to claim that “the FBI is certainly suspect these days after what they did with Hillary Clinton.”

There was at least one notable figure who wholeheartedly embraced Trump’s fearmongering: former KKK Grand Wizard David Duke. “Great Trump Speech,” tweeted Duke on Thursday evening. “Couldn’t have said it better!”

Ben Carson Claims Transgender People Are Proof of “How Absurd We Have Become”

Former Republican presidential candidate Ben Carson criticized the existence of transgender people while speaking at the Florida delegation breakfast on Tuesday in Cleveland.  

“You know, we look at this whole transgender thing, I’ve got to tell you: For thousands of years, mankind has known what a man is and what a woman is. And now, all of a sudden we don’t know anymore,” said Carson, a retired neurosurgeon. “Now, is that the height of absurdity? Because today you feel like a woman, even though everything about you genetically says that you’re a man or vice versa?”

“Wouldn’t that be the same as if you woke up tomorrow morning after seeing a movie about Afghanistan or reading some books and said, ‘You know what? I’m Afghanistan. Look, I know I don’t look that way. My ancestors came from Sweden, or something, I don’t know. But I really am. And if you say I’m not, you’re a racist,’” Carson said. “This is how absurd we have become.”

When confronted with his comments during an interview with Yahoo News’ Katie Couric, Carson doubled down on his claims.“There are biological markers that tell us whether we are a male or a female,” said Carson. “And just because you wake up one day and you say, ‘I think I’m the other one,’ that doesn’t change it. Just, a leopard can’t change its spots.”

“It’s not as if they woke up one day and decided, ‘I’m going to be a male or I’m going to be a female,’” Couric countered, pointing out that transgender people do not suddenly choose to change their gender identities on a whim.

Carson made several similar comments last year while on the campaign trail.

In December, Carson criticized the suggested that allowing transgender people into the military amounted to using the armed services “as a laboratory for social experimentation.”

Carson once suggested that allowing transgender people to use the restroom that aligned with their gender identity amounted to granting them “extra rights.”

Ivanka Trump Claims Her Father Supports Equal Pay, Access to Child Care

Ivanka Trump, the nominee’s daughter, made a pitch during her speech Thursday night at the RNC for why women voters should support her father.

“There have always been men of all background and ethnicities on my father’s job sites. And long before it was commonplace, you also saw women,” Ivanka Trump said. “At my father’s company, there are more female than male executives. Women are paid equally for the work that we do and when a woman becomes a mother, she is supported, not shut out.” 

“As president, my father will change the labor laws that were put into place at a time when women were not a significant portion of the workforce. And he will focus on making quality child care affordable and accessible for all,” she continued before pivoting to address the gender wage gap. 

“Policies that allow women with children to thrive should not be novelties; they should be the norm. Politicians talk about wage equality, but my father has made it a practice at his company throughout his entire career.”

However, Trump’s stated positions on the gender wage gap, pregnancy and mothers in the workplace, and child care don’t quite add up to the picture the Trumps tried to paint at the RNC.

In 2004, Trump called pregnancy an “inconvenience” for employers. When a lawyer asked for a break during a deposition in 2011 to pump breast milk, Trump reportedly called her “disgusting.”

According to a June analysis conducted by the Boston Globe, the Trump campaign found that men who worked on Trump’s campaign “made nearly $6,100, or about 35 percent more [than women during the April payroll]. The disparity is slightly greater than the gender pay gap nationally.”

A former organizer for Trump also filed a discrimination complaint in January, alleging that she was paid less than her male counterparts.

When Trump was questioned about equal pay during a campaign stop last October, he did not outline his support for policies to address the issue. Instead, Trump suggested that, “You’re gonna make the same if you do as good a job.” Though he had previously stated that men and women who do the same job should be paid the same during an August 2015 interview on MSNBC, he also cautioned that determining whether people were doing the same jobs was “tricky.”

Trump has been all but completely silent on child care so far on the campaign trail. In contrast, Clinton released an agenda in May to address the soaring costs of child care in the United States.

Ivanka’s claims were not the only attempt that night by Trump’s inner circle to explain why women voters should turn to the Republican ticket. During an interview with MSNBC’s Chris Matthews, Manafort said that women would vote for the Republican nominee because they “can’t afford their lives anymore.”

“Many women in this country feel they can’t afford their lives, their husbands can’t afford to be paying for the family bills,” claimed Manafort. “Hillary Clinton is guilty of being part of the establishment that created that problem. They’re going to hear the message. And as they hear the message, that’s how we are going to appeal to them.”

What Else We’re Reading

Vox’s Dara Lind explained how “Trump’s RNC speech turned his white supporters’ fear into a weapon.”

Now that Mike Pence is the Republican nominee for vice president, Indiana Republicans have faced “an intense, chaotic, awkward week of brazen lobbying at the breakfast buffet, in the hallways and on the elevators” at the convention as they grapple with who will run to replace the state’s governor, according to the New York Times.

“This is a party and a power structure that feels threatened with extinction, willing to do anything for survival,” wrote Rebecca Traister on Trump and the RNC for New York Magazine. “They may not love Trump, but he is leading them precisely because he embodies their grotesque dreams of the restoration of white, patriarchal power.”

Though Trump spent much of the primary season denouncing big money in politics, while at the RNC, he courted billionaires in hopes of having them donate to supporting super PACs.

Michael Kranish reported for the Washington Post that of the 2,472 delegates at the RNC, it is estimated that only 18 were Black.

Cosmopolitan highlighted nine of the most sexist things that could be found at the convention.

Rep. Steve King (R-IA) asked, “Where are these contributions that have been made” by people of color to civilization?