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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsSlate: The End of Roe
https://slate.com/news-and-politics/2018/06/kennedys-retirement-ensures-roe-v-wade-will-be-overturned.htmlAnthony Kennedys retirement ensures the Supreme Court will allow states to outlaw abortion.
Soon, perhaps within the next two years, the U.S. Supreme Court will overturn Roe v. Wade. It might not admit what its doing. It might cloak its reversal in minimalist rhetoric and even pretend to adhere to Roe. But the upshot will be the same. After Donald Trump replaces Justice Anthony Kennedy, the courts new conservative majority will allow states to outlaw abortion.
To understand why the practical death of Roe is all but assured, its important to recognize that Roe is already effectively dead letter in many parts of the country. Thats because, in 1992, the Supreme Courtwith Justice Anthony Kennedys votesubstantially watered down Roes promise in Planned Parenthood v. Casey. The Casey court found that while abortion does fall within the liberty protected by the Constitution, states may enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. Indeed, under Casey, a state can limit womens access to abortion, so long as it does not place an undue burden on her ability to terminate a pregnancy.
The undue burden test proved infinitely malleable for decades, allowing states to impose draconian requirements on abortion clinics and patients. Legislators shuttered clinics across the country through so-called TRAP laws, forcing many women to travel hundreds of miles to obtain clinic-based abortion care. And even then, they might not be able to get it. States imposed dayslong waiting periods, as well as mandatory ultrasounds and counseling, during which a doctor could be compelled to tell a patient lies about the procedure. A majority of states have prohibited the use of public funds to finance abortions, and 11 restrict private insurance companies ability to cover the procedure. Many clinics simply cannot afford to comply with this onslaught of regulations. Today, there are seven states in which there is just one extant abortion provider.
And that is the state of affairs with a Supreme Court that putatively protects the right to abortion. In 2016, with Kennedys vote, the court did strike down a Texas law imposing stringent and gratuitous regulations on abortion clinics. But the vote was 53. Chief Justice John Roberts dissented, as did Justices Samuel Alito and Clarence Thomas, asserting that Texas rules did not create an undue burden for women. (Justice Antonin Scalia had recently died; no one seriously doubts that his successor, Justice Neil Gorsuch, wouldve dissented, too.)
Soon, perhaps within the next two years, the U.S. Supreme Court will overturn Roe v. Wade. It might not admit what its doing. It might cloak its reversal in minimalist rhetoric and even pretend to adhere to Roe. But the upshot will be the same. After Donald Trump replaces Justice Anthony Kennedy, the courts new conservative majority will allow states to outlaw abortion.
To understand why the practical death of Roe is all but assured, its important to recognize that Roe is already effectively dead letter in many parts of the country. Thats because, in 1992, the Supreme Courtwith Justice Anthony Kennedys votesubstantially watered down Roes promise in Planned Parenthood v. Casey. The Casey court found that while abortion does fall within the liberty protected by the Constitution, states may enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. Indeed, under Casey, a state can limit womens access to abortion, so long as it does not place an undue burden on her ability to terminate a pregnancy.
The undue burden test proved infinitely malleable for decades, allowing states to impose draconian requirements on abortion clinics and patients. Legislators shuttered clinics across the country through so-called TRAP laws, forcing many women to travel hundreds of miles to obtain clinic-based abortion care. And even then, they might not be able to get it. States imposed dayslong waiting periods, as well as mandatory ultrasounds and counseling, during which a doctor could be compelled to tell a patient lies about the procedure. A majority of states have prohibited the use of public funds to finance abortions, and 11 restrict private insurance companies ability to cover the procedure. Many clinics simply cannot afford to comply with this onslaught of regulations. Today, there are seven states in which there is just one extant abortion provider.
And that is the state of affairs with a Supreme Court that putatively protects the right to abortion. In 2016, with Kennedys vote, the court did strike down a Texas law imposing stringent and gratuitous regulations on abortion clinics. But the vote was 53. Chief Justice John Roberts dissented, as did Justices Samuel Alito and Clarence Thomas, asserting that Texas rules did not create an undue burden for women. (Justice Antonin Scalia had recently died; no one seriously doubts that his successor, Justice Neil Gorsuch, wouldve dissented, too.)
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Slate: The End of Roe (Original Post)
geardaddy
Jun 2018
OP
Proud Liberal Dem
(24,460 posts)1. "Ensures" is a bit strong don't cha think?
It's possible, not invitable IMHO
geardaddy
(24,933 posts)2. Yeah, not my words
The rest of the article is a good read though.
JenniferJuniper
(4,516 posts)5. How do you see it not being inevitable?
Proud Liberal Dem
(24,460 posts)6. Is anything truly inevitable?
I mean, just having another Trump nominee on the bench doesn't absolutely guarantee a reversal of Roe V. Wade and reversal would depend on a LOT of different variables. I mean, I'm not saying it's impossible by any means and another Trump nominee doesn't portend well for the future of a lot of progressive things, but it's still far from a certainty IMHO. Has Roe V. Wade- the precedent-setting ruling itself- even been directly challenged since 1973?
Iliyah
(25,111 posts)3. We will still fight.
Didn't Slate go over to the DARK SIDE.
geardaddy
(24,933 posts)4. I was unaware that they had
Thanks for the heads up. I just thought it was a good read. I don't think it's inevitable, but it shows what could happen.