There's no doubt that the issue of abortion is a highly contentious issue in America. But alas, we are a nation of laws, and, in 1973, the Supreme Court ruled 7-2 in
Roe v. Wade that a woman's right to choose an abortion is a Constitutionally protected right, making it legal in all 50 states. In that case, the Court weighed the mother's 14th Amendment right to privacy (which includes a woman's right to choose to terminate her pregnancy) against the State's legitimate interest in protecting the health of the mother and the potential life of the unborn child and ultimately ruled that the former trumps the latter, but only up to the point of viability of the unborn child.
Roe established a trimester framework which drew the line in the sand at the third trimester. In other words, a woman's right to choose to terminate her pregnancy under
Roe was protected under the 14th Amendment, but only up to the end of the second trimester (6 months). Beyond the 6-month mark, a state was free to make abortion illegal if the state was so inclined. Fast forward to 1992: the issue of Abortion was once again placed squarely before the Supreme Court in the landmark case
Planned Parenthood v. Casey. Many legal scholars predicted that the Court would take this opportunity to overrule and reverse
Roe v. Wade given the makeup of the Supreme Court in 1992 (8 Republican-appointed Justices and
only 1 Democratic-appointed Justice) and given the fact that the issue of abortion had not been heard by the Court in nearly 20 years. However, the opposite happened; the Court doubled down on
Roe. In so doing, the Court tossed out the trimester framework and, at the suggestion of the Court's then-only female Justice, Sandra Day O'Connor, came up with a new Constitutional standard of review for abortion cases: the "Undue Burden" test. Under the Undue Burden test, states are free to regulate abortion in whatever manner they see fit just so long as their regulations do not make it an "Undue Burden" for a woman to exercise her 14th Amendment right to choose an abortion. The Court figured that this would provide the states with more flexibility to protect the health of the mother and the unborn child while still respecting a woman's right to choose to terminate her pregnancy as a Constitutionally protected right in all 50 states.
This week, the Supreme Court ruled 5-3 in
Whole Woman's Health v. Hellerstedt that: (i) abortion is still legal in all 50 states; (ii) the Undue Burden test still remains the legal standard to determine whether or not a state has gone too far in regulating a woman's right to choose an abortion; and (iii) Texas' law, which would have effectively reduced the number of abortion clinics down to about 20 state-wide, most definitely imposed an "Undue Burden" on a woman's right to choose.
Per
NY Times:
The decision concerned two parts of a law that imposed strict requirements on abortion providers in Texas signed into law in July 2013 by Rick Perry, the governor at the time.
One required all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other required doctors performing abortions to have admitting privileges at a nearby hospital.
“We conclude,” Justice Stephen G. Breyer wrote for the majority, “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 previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”
Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
What are your thoughts on the Court's abortion rulings?
