Tag Archives: Planned Parenthood v. Casey

The Kennedy Retirement and the Radicalizing of the Supreme Court

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Protesters swarmed Washington, DC, to voice their opposition to Brett Kavanaugh.

When Justice Anthony Kennedy announced his retirement from the Supreme Court, alarms went up about overturning Roe v. Wade, which would make abortion once again illegal in many states. As shown in Whole Woman’s Health v. Hellerstedt, in which Kennedy provided the decisive fifth vote overturning Texas’ draconian laws limiting abortion access, one justice can preserve the right to abortion. But Kennedy also voted with the majority in Planned Parenthood v. Casey in 1992, when the Supreme Court upheld a state’s right to impose extra requirements — mandatory counseling, waiting periods, etc. — on those seeking abortions. So, while he was willing to curtail access, he never was willing to overturn Roe v. Wade altogether.

In Brett Kavanaugh’s twisted worldview, paperwork is the true burden, while an unwanted pregnancy is not.

But Kennedy was the last independent conservative on the Supreme Court. Anyone Trump nominated was going to be on the far right because he was using the Federalist Society’s list compiled by Leonard Leo. Not quite a kingmaker, but definitely a justice-maker, Leo is also responsible for Justices Roberts, Alito, and Gorsuch.

But some on the right have some doubts about Kavanaugh. In response, the National Review emphasizes Kavanaugh’s judicial defense of “religious freedom.” (Nothing shows the real danger Kavanaugh poses like pundits on the far right reassuring other conservatives.) They lauded Kavanaugh’s ruling in favor of the Trump administration in the case of Jane Doe, the teenage immigrant the Department of Health and Human Services (HHS) tried to stop from having an abortion, as “the latest in a long, unbroken line of consistent decisions on issues of religion and abortion.” Continue reading →

Book Club: Crow After Roe

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Crow After RoeA new book by Robin Marty and Jessica Mason Pieklo takes readers on a tour of a disaster. It was a catastrophe that swept through much of the Midwest but also shook states like Arizona, Idaho, and Mississippi. Its widespread effects raised numerous health concerns as it made its way through much of the country, and its repercussions are still felt today. Undoing the damage could take years.

The disaster was not natural, but political. The 2010 midterm elections saw a wave of Republican victories, giving state legislatures a new makeup and a new agenda. Reacting to a recently elected Democratic president who had called himself “a consistent and strong supporter of reproductive justice,” conservative lawmakers introduced one bill after another to limit access to reproductive health care — especially, but not exclusively, abortion.

The defeat of Arizona’s 20-week abortion ban is a timely reminder of what activists can accomplish.

In Crow After Roe: How “Separate but Equal” Has Become the New Standard in Women’s Health and How We Can Change That (Ig Publishing, 2013), Marty and Pieklo, both reporters for the reproductive health and justice news site RH Reality Check, take a state-by-state look at the many bills that were introduced in the wake of the 2010 midterm elections. Those bills made the next year, 2011, a record year for state-level legislation to restrict abortion. States passed more anti-abortion laws in 2011 than in any year in the last three decades. What was quickly dubbed the War on Women continued into 2012. That year saw the second highest number of new state-level abortion restrictions. This year is shaping up to be much like the prior two, with new restrictions introduced in more than a dozen states, according to the Guttmacher Institute.

Marty and Pieklo argue that this onslaught of bad legislation has put women — especially poor, minority, and rural women — in a separate and secondary class of health care consumers who have little choice or control over their reproductive health. The authors posit that the goal of the many restrictions is to render abortion “legal in name only” — still legal, but largely unavailable. Continue reading →

20 Years Since Planned Parenthood v. Casey

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The U.S. Supreme Court, presided over by William H. Rehnquist, decided Planned Parenthood v. Casey 20 years ago.

This Friday, June 29, marks the 20th anniversary of the Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.

I first learned about the Supreme Court decision of Planned Parenthood v. Casey about 10 years ago. I was sitting in a constitutional law class in a suburban university. It was my first introduction to abortion access restrictions whose names are now commonplace to me: mandatory counseling sessions, 24-hour waiting periods, parental consent, spousal notification, and reporting requirements.

Basically, the facts of the case look like this. In 1989, Pennsylvania amended its Abortion Control Act to require:

  • the person undergoing the abortion to give informed consent and receive mandatory counseling, including alternatives to abortion.
  • a 24-hour waiting period between the counseling appointment and the procedure itself.
  • parental consent for minors, with available judicial bypass.
  • a spousal notification requirement.
  • reporting requirements for providers.

Geography, relationships, and other life realities are perfectly capable of creating their own “undue burdens.”

The state’s Planned Parenthood association challenged the statute and — fast forwarding a bunch — the case eventually ended up in the U.S. Supreme Court. In a 5-4 decision, the Court held that the standard for whether a state could enact a restriction to abortion access was whether that restriction placed an “undue burden” on the person seeking the abortion. A burden would be considered undue “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

Of the restrictions enumerated in Pennsylvania’s Abortion Control Act, the Court considered only the spousal notification requirement an undue burden. Continue reading →