Courting Women

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

“… [T]he difference of having three women on the Supreme Court. I think that all the justices obviously are important in that court, but it really makes a difference to begin to have a court that more reflects the diversity of this country, and I think women who can really speak from a woman’s point of view, just how impactful these kind of laws that specifically target women and women’s access to health care, how impactful they are. And I was really grateful to have the women’s voices in the room.”

Cecile Richards, Planned Parenthood president, March 2, 2016, commenting on that day’s oral arguments in Whole Woman’s Health v. Hellerstedt

Me, too, Cecile.

Courting women. Let’s snatch that phrase from the parlor in a Jane Austen novel and lob it into the Supreme Court chambers, making courting not the passive “pick me” word of yesteryear, but an assertive “empower me” word of today.

Power, judiciously applied, is what Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan demonstrated during oral arguments in Whole Woman’s Health v. Hellerstedt. They formed a tag team of relentless logic, assertiveness, and deep understanding of the predicament of women in Texas needing timely, accessible abortion care — and not getting it. The court was probing two provisions of Texas HB2, the law that requires that (1) physicians performing abortions must have admitting privileges at a hospital near their clinics and (2) all abortions must be performed in ambulatory surgical centers (ASCs, mini-hospitals). (See SCOTUSblog “Round Up” and Roe v. Wade: Texas Then and Now for additional background on this important case.)

Justices explored the elements that create an unconstitutional “undue burden” for women seeking an abortion by questioning attorney Stephanie Toti, representing Whole Woman’s Health, and Solicitor General Scott Keller, representing Texas. Here are some highlights: Continue reading

20 Years Since Planned Parenthood v. Casey

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