Late next June, when each party will almost certainly have its presidential nominee in place and voters other than party stalwarts start paying real attention to the 2016 race, the US supreme court will likely hand down a ruling that will change the course of the race and many American women’s lives. That is because, on 13 November, the court announced that it will hear Whole Women’s Health v Cole, a challenge to HB2, Texas’s draconian anti-abortion statute.
And, if HB2 is upheld, Roe v Wade – which legalized abortion in the US – is essentially dead.
When the court does finally make its decision, the Democratic nominee will not only be a strong supporter of reproductive rights but is overwhelmingly likely to be the first woman to lead the presidential ticket of either party. The Republican candidate is much more up in the air, but will certainly oppose reproductive rights, and (if the candidate is anyone but Donald Trump) will probably be committed to the idea that abortion should be illegal in all circumstances .
So no matter how it is decided, the case will send off a political firestorm – as did the US supreme court’s landmark 1992 abortion case, Planned Parenthood v Casey – and nobody can be sure how the US supreme court will resolve the issues it left unresolved 23 years ago.
Casey was also heard in a presidential election year, after supporters of abortion rights challenged a package of regulations in Pennsylvania under the assumption that the US supreme court would rule against them and throw out Roe. The pro-choice movement, concerned that the court would overturn abortion rights at some point, wanted the court to rule before the electorate decided between the incumbent George HW Bush and whomever the eventual Democratic nominee was, if it had to happen at all.
Somewhat surprisingly, the court re-affirmed Roe v Wade, and the presidential candidate who supported women’s abortion rights – Bill Clinton – was elected despite the backlash from the anti-abortion movement.
Because the Republican-dominated court had been widely expected to overturn Roe, most supporters of reproductive rights treated it as a relief and a victory. And, compared to the most likely alternative outcome of giving the state unlimited control over women’s uteruses, it was.
But the pro-choice movement’s “victory” came at a steep cost: Roe’s “trimester framework” had originally forbade almost all state regulation of pre-viability (or first and second trimester) abortions. The ruling in Casey replaced the viability framework with the determination that any regulation of abortion at any stage of a woman’s pregnancy would be constitutional as long as it did not constitute an “undue burden”.
In theory, the “undue burden” standard could have provided a fairly robust protection of a woman’s right to choose to have an abortion; in practice, it has not.
Among other things, the court held in Casey that a mandatory waiting period for a woman seeking an abortion was constitutional, although the restriction placed a significant burden on some women – particularly poor and/or rural women – while not advancing any legitimate state interest in the protection of its citizens. Mandatory waiting periods are simply designed to make abortion maximally inconvenient and provide no heath benefits to the women subjected to them. As then-justice John Paul Stevens wrote in his opinion in Casey: “The mandatory delay ... appears to rest on outmoded and unacceptable assumptions about the decision-making capacity of women.”
The Texas statute is the obvious end point of a ruling like Casey; it’s the culmination of a process in which anti-abortion forces have piled regulation upon regulation until they have forced most of the state’s abortion clinics to close. In the case of Texas, HB2 was upheld by the state supreme court even though it would place a major burden on the reproductive rights of women outside of a handful of urban centers, and despite the fact that the law has no plausible connection to protecting a woman’s health. The clinics are not being closed because they don’t provide safe abortions, but because they do .
As with so many cases, it is nearly certain that the fate of a woman’s right to choose in the United States will come down to Justice Anthony Kennedy, the only member of the five-justice Casey majority still on the court. Supporters of Roe have ample reason to be pessimistic. Kennedy – always the shakiest member of the Casey five – has upheld 20 of the 21 abortion restrictions to come before him as a US supreme court justice under the new “undue burden” standard. It’s possible that he could vote to uphold the Texas statute and continue the process of asserting that Roe remains in force while making it devoid of any meaningful content.
Conversely, it’s possible that the Texas law – which does far more to restrict access to abortion than any that the Court has considered since Casey – will finally be a bridge too far for Kennedy. As Ian Milhiser of ThinkProgress observed , Kennedy did vote to grant a stay preventing HB2 from immediately going into effect, suggesting that he is, at the very least, uncertain about whether to uphold the law. He may well be swayed by the evidence showing how much HB2 would affect abortion access for women in Texas and any other state that followed its model.
It is unlikely that Kennedy will author an opinion announcing in so many words that Roe v Wade has been overruled. But whether the court’s ruling is eventually framed that way or not, the fate of abortion access in America may well be decided four months before Americans head to the polls.
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