Decade in review: Abortion
on Dec 31, 2019 at 2:00 pm
Abortion was a hot-button issue at the Supreme Court during the past decade, as it has been for almost 50 years. The right to obtain an abortion before a fetus becomes viable was first recognized in 1973 in Roe v. Wade and then curtailed in 1992 in Planned Parenthood v. Casey, which allowed states to regulate pre-viability abortions as long as the regulations do not pose an undue burden on abortion access. But for most of this decade, there were five votes on the Supreme Court to affirm Roe’s essential holding. In 2016, the court struck down a provision in a Texas law that required abortion providers to have admitting privileges at a local hospital (along with another provision requiring abortion clinics to have facilities comparable to an ambulatory surgical center), ruling 5-3 that any medical benefits from the provision were outweighed by the burden it imposed on women.
The fifth vote to strike down the Texas law came from Justice Anthony Kennedy, who was also in the majority in Casey. So when Kennedy retired in July of 2018, and President Donald Trump, who had run on a strong anti-abortion platform, had the chance to replace him, abortion-rights supporters braced for cutbacks to, if not a complete overruling of, Roe. Although Kennedy’s replacement, Justice Brett Kavanaugh, stated at his confirmation hearing that Roe is “an important precedent” that “has been affirmed many times,” the court can overrule its precedent, and has done so several times in the past few years.
One test of Roe’s future will come later this term, when the justices decide a challenge to a Louisiana law that contains an admitting-privileges requirement virtually identical to the one the court struck down in 2016. The court could take this opportunity to overrule Roe completely, it could rule that the Louisiana law’s effects differ from those of the Texas law in a meaningful way, or it could decide, as Louisiana argues, that abortion providers can’t bring lawsuits on behalf of their patients. Whatever happens, this decade will end as it started: with a country, and a Supreme Court, deeply divided over abortion.