As most people realize, #SCOTUS declared that the right to abortion was a fundamental right in Roe v. Wade, and that any infringement was subject to strict scrutiny. Just about any restriction in the first trimester (when most abortions occur) would be unconstitutional.
What many do not realize is that the Supreme Court dialed back the level of protection in Casey. Abortion was still a constitutional right, but it became a lot easier to regulate. As long as a law did not impose an “undue burden” on women seeking an abortion, it was fine.
An undue burden was a state-created substantial obstacle to obtaining an abortion. The Supreme Court then made clear that very few things imposed an undue burden. Waiting periods? No undue burden. Outlawing a safer procedure? No.
Then a miracle happened. In Whole Woman’s Health v. Hellerstedt, the Supreme Court made the undue burden test a lot more protective of abortion rights. The analysis of whether a law imposed an undue burden had two questions instead of one.
As before, cts would consider whether a law imposed a substantial obstacle in the path of a women seeking an abortion. But now states would have to show that their law actually accomplished what it claimed to do. And states could not just wave their hands. They needed evidence.
Indeed, that is exactly what Texas had done in Whole Women's Health.
It had required clinics to meet hospital OR levels of safety.
And it had required abortion providers to have admitting privileges at nearby hospitals.
#SCOTUS struck them both down.
It had required clinics to meet hospital OR levels of safety.
And it had required abortion providers to have admitting privileges at nearby hospitals.
#SCOTUS struck them both down.
Louisiana then passed the exact same law as Texas, requiring that abortion providers have admitting privileges at nearby hospitals.
Even though the Supreme Court had JUST RULED that such laws violated the Constitution, the Fifth Circuit upheld it.
That was June Medical
Even though the Supreme Court had JUST RULED that such laws violated the Constitution, the Fifth Circuit upheld it.
That was June Medical
In June Medical (link: buff.ly/2BSiAa8),
#SCOTUS held, again, that requiring docs to have admitting privileges at nearby hospitals imposes an undue burden
According to Breyer,
There is no proof it advances women's health
On the contrary, it forces clinics to shut down
#SCOTUS held, again, that requiring docs to have admitting privileges at nearby hospitals imposes an undue burden
According to Breyer,
There is no proof it advances women's health
On the contrary, it forces clinics to shut down
Unfortunately, it is Chief Justice Roberts opinion that controls in June Medical, & future #abortion cases.
Breyer writes for four.
Roberts, who writes separately, is the fifth vote to strike down LA's law.
He will also be 5th vote in future cases
#SCOTUS #SupremeCourt
Breyer writes for four.
Roberts, who writes separately, is the fifth vote to strike down LA's law.
He will also be 5th vote in future cases
#SCOTUS #SupremeCourt
Unfortunately, Roberts, who dissented in Whole Woman's Health, repudiates the extra protection that case provided.
In analyzing whether a law imposes an undue burden, cts need only consider the obstacles for women
States do not have prove the law actually provides any benefit
In analyzing whether a law imposes an undue burden, cts need only consider the obstacles for women
States do not have prove the law actually provides any benefit
States can pass TRAP laws again
States do not need to prove that #abortion laws actually help women at all, & the cts can say that while the law might make it harder for women to get an abortion, it is not really a "substantial" burden.
In other words, we are back to Casey.
States do not need to prove that #abortion laws actually help women at all, & the cts can say that while the law might make it harder for women to get an abortion, it is not really a "substantial" burden.
In other words, we are back to Casey.
