The renewed blizzard of Republican-controlled state legislative activity restricting abortion has become pretty difficult to ignore, thanks to the dramatics currently taking place in Texas and North Carolina. And the cumulative effect of state laws enacted since the GOP landslide of 2010 is becoming hard to ignore as well. The Guttmacher Institute reported earlier this week that more new abortion restrictions were enacted in the first half of 2013 than in all of 2012; 2013 now ranks second to 2011 as a landmark year for antichoice legislation.
Now from a superficial point of view, the latest batch of state antichoice actions have focused on the relatively safe ground (politically and to a lesser extent constitutionally) of late-term abortions, where the Supreme Court has allowed some leeway in the past. But since most of the “fetal pain” laws have been accompanied by what Guttmacher calls “TRAP” measures—Targeted Regulation of Abortion Providers—they are clearly intended to restrict access to all clinical abortions at any stage of pregnancy, and certainly have that effect.
Since the current constitutional standard for abortion restrictions remains Casey v. Planned Parenthood’s ban on measures that place an “undue burden” on the right to choose, most of these new state laws are clearly in the “danger area” constitutionally. Just yesterday, a federal district court judge in Wisconsin temporarily blocked implementation of that state’s new regulations on abortion providers pending a showing that it did not violate Casey. Federal court challenges are likely in other states as well.
So the long-awaited day of a fresh SCOTUS review of the constitutional law of abortion (last visited by the Court in the 2007 Carhart v. Gonzales decision upholding a federal “partial-birth abortion” ban) may soon be upon us. It could even happen sooner that expected: at the end of the recently concluded term, SCOTUS agreed to hear an appeal of a case involving a Oklahoma restriction on the use of RU-486 that could involve a reinterpretation of Casey. And in any event, the shrewd adoption by antichoicers of the strategy of justifying restrictions as “health and safety regulations” seems designed to exploit the loophole opened up in Carhart by Justice Kennedy that invited policymakers to make their own determinations of women’s health interests.
If a SCOTUS review is inevitable, the key question is when it happens, of course. In theory, it could be delayed long enough to occur after the inauguration of a new president in 2017, which, if he or she is a Republican, could produce a small but momentous shift in the Court’s composition. But it’s not at all clear the current Court would strike down state restrictions, given Anthony Kennedy’s pivotal position (it is generally assumed that Roberts, Scalia, Alito and Thomas would welcome the opportunity to overturn or significantly modify Casey and the earlier Roe v. Wade). Indeed, that may be why pro-choice advocates have been slow to challenge state restrictions up until now unless they were drafted in an egregiously unconstitutional manner. That seems to have changed thanks to the current assault, and before long supporters of reproductive rights may be looking anxiously at courtrooms as well as statehouses for what comes next.
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