American Justice 2016 by Caplan Lincoln;

Author:Caplan, Lincoln; [Caplan, Lincoln]
Language: eng
Format: epub
Tags: POL000000 Political Science / General
Publisher: University of Pennsylvania Press, Inc.

Chapter 4

October Term 2015

The most important ruling of the 2015 term was about abortion rights. By 5–3 in a case called Whole Woman’s Health v. Hellerstedt, on the last day of the term, the Supreme Court struck down two provisions of a Texas statute that made it much more difficult for many women to have an abortion. Without any medical benefits for them from these so-called health-and-safety provisions, the statute was a TRAP law—Targeted Regulation of Abortion Providers—intended to impede them. The vote of Justice Antonin Scalia likely would have made the case a typical 5–4 term-ending clash between conservatives and liberals but likely would not have changed the result.

Anthony M. Kennedy, not long before his eightieth birthday, cast the critical vote. As the most senior of the justices in the majority, measured by years on the Court, he had the prerogative of assigning the Court’s opinion. Based on his practice in recent terms, the odds were good that he would write it himself. Instead, he chose Stephen G. Breyer to write it. Breyer wrote a crisp, quietly stern opinion, which was the Court’s most important statement about abortion rights in twenty-four years.

Abortion has been among the most divisive of the wedge issues in American politics and constitutional law for two generations. The Texas case tested the Court’s tolerance for laws that claimed to have one purpose when they clearly had another—by saying their goal was to protect women’s health when it was really to protect, as unborn life, the fetuses that pregnant women carried.

A key question about the test was how the Court would apply the legal standard of that generation-old case, Planned Parenthood v. Casey: Would it retain the standard’s respect for a woman’s right to choose an abortion or carry her pregnancy to term, along with its deference to a state that wanted to protect life throughout a pregnancy? Or would it let Texas’s antiabortion politics further change American law by restricting the Court’s protection of a woman’s right to choose and the dignity that represents? It was a clear example of how the Republican Court’s rightward shift affected even its best-known liberal holding—that the Constitution protects a woman’s right to choose.

In 1992, the controlling opinion began, “Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”

With the replacement of the liberal Thurgood Marshall by the conservative Clarence Thomas at the beginning of the 1991–92 term, it had seemed quite possible that the Court led by the conservative Chief Justice William H. Rehnquist would overturn Roe v. Wade and declare that there was no constitutional right for a woman to choose an abortion. The papers of Justice Harry A. Blackmun showed that Rehnquist drafted an opinion for the Casey case that would have overturned Roe.

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