Roe v. Wade: Ready for any RED State to Resubmit for Review
(Believe it – it is a very valid assumption)
History of Roe v. Wade: The legal case in which the U.S.
Supreme Court (USSC) on January 22, 1973 ruled (7–2) that unduly
restrictive state regulation of abortion is
unconstitutional – the majority opinion was
written by Justice Harry A. Blackmun. The high court held
that a set of Texas statutes criminalizing abortion in most instances violated
a woman’s constitutional right of privacy,
which it found to be implicit in
the liberty guarantee of the due process clause
of the Fourteenth Amendment (e.g., [“… nor
shall any state deprive any person of life, liberty, or property, without due
process of law”].
The case began in 1970 when “Jane Roe”—a fictional name used to
protect the identity of the plaintiff, Norma
McCorvey — instituted federal action against Henry Wade, the district
attorney of Dallas county, TX, where Roe resided. The Supreme Court disagreed
with Roe’s assertion of an absolute right to terminate pregnancy in any
way and at any time and attempted to balance a woman’s right of privacy with a
state’s interest in regulating abortion. In his opinion, Blackmun noted that
only a “compelling state interest” justifies regulations limiting “fundamental
rights” such as privacy and that legislators must therefore draw statutes
narrowly “to express only the legitimate state
interests at stake.”
The court then attempted to balance the state’s distinct
compelling interests in the health of pregnant women and in the potential life
of fetuses. It placed the point after
which a state’s compelling interest in the pregnant woman’s health would allow
it to regulate abortion “at
approximately the end of the first trimester” of pregnancy. With regard to
the fetus, the
court located that point at “capability of meaningful life outside the mother’s
womb,” or viability.
Repeated challenges since
1973 narrowed the scope of Roe v. Wade but did not overturn
it.
In Planned Parenthood of SE PA v. Casey (1992) the Supreme Court established that restrictions on
abortion are unconstitutional if they place an “undue burden” on a woman
seeking an abortion before the fetus is viable.
Further, in Whole Woman’s Health v. Hellerstedt (2016),
the court invoked its decision in Casey to strike down two provisions
of a Texas law that had required abortion clinics to meet the standards
of ambulatory surgical
centers and abortion doctors to have admitting privileges at a nearby hospital.
And, here we are possibly today with what I believe to be this:
W/H messaging for Kavanaugh re: Roe v. Wade.... direct and pointed from
the messenger: “Alternative Facts Conway” her latest to him and RED base and this headline:
Background leading up this point: Texas might for example might ask for review (probable
route for court review and reversal) – the case in question:
The
Supreme Court struck down a Texas law imposing strict regulations on abortion
doctors and facilities that were specifically designed to shut down clinics. The 5-3 ruling (June 26, 2016) held that the 2013 Texas law
placed an undue burden on women exercising their constitutional right to end a
pregnancy established by Roe v. Wade in 1973. Justice Anthony Kennedy joined
liberal members of the court in ruling that both key provisions of the law
violated a woman's constitutional right to obtain an abortion.
Justice
Stephen Breyer, writing for the court, said that the appeals court that upheld
the law was wrong in its approach, noting that courts are required to “consider
the burdens a law imposes on abortion access together with the benefits that
those laws confer, and raises questions of medical uncertainty and is also
inconsistent with this court's case law.”
1.
Three conservative justices - Chief Justice John Roberts, Justice Clarence
Thomas and Justice Samuel Alito - dissented.
2.
This nationwide legal precedent that the two provisions in the Texas law were
unconstitutional, now also hampers other state laws already in place.
3.
Texas lawmakers said the 2013 law was aimed at protecting women's health.
4.
Doctors and abortion providers said the regulations were medically unnecessary
and intended to shut down their clinics.
NOTE: Since the law was passed, the number of abortion
clinics in Texas, the second-most-populous U.S. state with about 27 million
people, has dropped from 41 to 19.
The
harsh Texas law required abortion doctors to have “admitting privileges” means
a type of formal affiliation that can be hard to obtain at a hospital within 30
miles of a clinic to enable them to treat patients needing surgery or other
critical care. The law also required clinic buildings to possess costly,
hospital-grade facilities including: having a certain corridor width, swinging
motion doors, floor tiles, parking spaces, a specific elevator size, certain ventilation,
and even the angle that water flows from drinking fountains.
Justice Beyer also wrote: “We conclude
that neither of these provisions offers medical benefits sufficient to justify
the burdens upon access that each imposes. Each places a substantial obstacle
in the path of women seeking a pre-viability abortion, each constitutes an
undue burden on abortion access, and each violates the federal Constitution.”
Will history repeat itself?
The Supreme Court has been a dangerous battlefield for
pro-choice advocates since 2006, when the appointment of Justice Samuel Alito gave conservatives a
solid grip on the nation’s highest Court.
Indeed, not long after Alito joined
the Court, he provided the key fifth vote in Gonzales v.
Carhart, which effectively overruled a 5-4
pro-choice decision and appeared to provide groups opposed to abortion with
a blueprint they could use to undermine reproductive freedom. Carhart upheld a
ban on a procedure called “intact dilation and extraction,” which many
physicians believe to be the safest method of aborting a fetus under certain circumstances.
Significantly,
in upholding Carhart, the Court held that lawmakers enjoy “wide discretion to pass legislation in areas where
there is medical and scientific uncertainty.”
My Insert and the possible
impact of that: If GOP-hired
lawyers or lawyers representing strong anti-abortion groups, and if they can
convince courts that there is genuine disagreement about the medical value of a
law that restricts abortion, then Carhart seems to suggest that it should be
upheld. This is what pro-choice advocates fear the most.
It didn’t take long
before anti-abortion advocates and their allies in state legislatures began to
test just how far the courts were willing to push Carhart — and whether they would sustain anti-abortion laws based
on the illusion of medical uncertainty.
The Texas law at issue is HB-2 “Whole Woman’s
Health v. Hellerstedt.” The case current pending before the Supreme Court is
the culmination
of this strategy by abortion opponents. Masterminded by Americans
United for Life, a sophisticated group that drafts model
legislation for state lawmakers eager to restrict access to abortion, HB2 in
Texas imposes expensive architectural and other requirements on abortion
clinics and often-difficult-to-obtain credentialing requirements on abortion
providers. On the surface, HB2 appears to be a rather ordinary series of health
regulations.
H2B
defenders argue that its requirement for abortion clinics to comply with the
costly standards Texas imposes on “ambulatory surgical centers,” for example,
will make these facilities safer for women by bringing them into compliance
with standards that are already imposed on many other facilities that perform
surgeries. (Note:
On the surface that sounds good, but the ever-infamous but….).
But,
if a court (any court) digs just a
few inches below the surface, however, it rapidly becomes clear that the law
imposes potentially crippling burdens on abortion clinics, often with no
apparent health benefits whatsoever. The ambulatory surgical center
requirement, for example, applies
even to clinics that perform no surgeries all at — many clinics only offer
medication abortions, which are induced by pills taken orally.
Before
HB2, Texas had 40
licensed abortion clinics. If the law takes full effect, a trial judge
wrote that “only seven facilities and a potential eighth will exist in Texas
that will not be prevented . . . from performing abortions.”
A
decision upholding HB2 would likely endanger these remaining abortion clinics
as well, because it is almost certain that states like Texas would try to push
the envelope even further if they scored a big victory in the Supreme Court.
Once the courts permit states to enact sham health laws whose real purpose is
to restrict abortion, the only limit on such restrictions may be lawmakers’
ability to pass clever laws. A decision upholding HB2 could allow abortion
opponents to turn packs of wolves loose in abortion clinics, so long as those
wolves are dressed in sheep’s clothing.
Fortunately
for abortion providers, the possibility that Texas will win outright review in Whole Woman’s Health appears to have
died with the late Justice Antonin Scalia. At oral argument, the
Court’s four liberals took
turns pummeling Texas Solicitor General Scott Keller as he tried to defend
the law.
My 2 cents: Now, the stakes remain high or higher since in the Whole Woman’s Health case in large part
because Texas won
its case in the conservative United States Court of Appeals for the Fifth
Circuit.
So, if the Supreme Court were still split 4-4, that Fifth Circuit
decision would remain in effect, but now
with Kavanaugh confirmed – that may be a moot point.
Stay tuned – this is a biggie for sure and longtime goal and dream for
the conservative GOPers.
Thanks for stopping by.
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