On Wednesday March 2, the most important abortion case since 1992’s Planned Parenthood v. Casey will be argued before the U.S. Supreme Court. Casey shifted away from Roe v. Wade’s focus on privacy and instead asked whether abortion restrictions were an "undue burden" on women.
The court, however, has not been clear about what "undue burden" means.
In 2007’s Gonzales v. Carhart, the last significant abortion case, swing voter Justice Anthony Kennedy joined the four conservatives in ruling that laws against partial-birth abortion were not an undue burden. Legal commentators, like CNN’s Jeffrey Toobin, have worried that Kennedy may have signaled that other restrictions might be constitutional as well.
Wednesday’s case, Whole Woman’s Health v. Hellerstedt, springs from a Texas law that added safety standards to abortion clinics in line with other surgical clinics. It requires physicians to have admitting privileges at the local hospital and stipulates that hallways must be wide enough for gurneys to wheel women into an ambulance, for example. Those who challenge the law as an undue burden argue the added expense will force clinics to close, and that the law is actually an attempt to restrict abortion access.
The case gets at the heart of the "undue burden" argument. The court could define it very specifically, in which case not only this Texas law but also dozens of other state laws may be affected.
Audio of the oral argument will be available at SCOTUSblog Wednesday. Here are five things to listen for:
1. Will Justice Kennedy or the liberal justices ask about the case of Dr. Kermit Gosnell?
Gosnell’s abortion clinic was a disturbing example of a failure to regulate. He was convicted of three counts of murder, 21 felony counts of performing illegal abortions, and 211 counts of violating the 24-hour informed-consent law. The Philadelphia grand jury concluded: "If oversight agencies expect to prevent future Dr. Gosnells, they must find the fortitude to enact and enforce the necessary regulations." Texas insists its law is a response to this case. If Kennedy or the liberal justices are asking about Gosnell, it may signal they believe Texas is legitimately concerned about women’s health.
2. Will Justice Kennedy signal he wants to make sweeping abortion law?
An unpredictable justice, Kennedy recently voted against Obamacare. He also ruled in favor of same-sex marriage. Might he try to dramatically swing the pendulum again? If he asks about huge issues like reproductive freedom and human dignity, this may signal Kennedy wants to make sweeping changes rather than focus on narrow issues. Government has been given very little guidance about how to apply the undue burden standard, and he may want to change that. (I’ve argued elsewhere that the concept of human dignity Kennedy used in approving same-sex marriage may be good news for abortion opponents when it comes to his views on abortion.)
3. Will Justices Kagan or Sotomayor break ranks?
With Justice Antonin Scalia’s death, conventional wisdom is that the court would tie 4-4, which would uphold the appeals court endorsement of the Texas law. A different outcome would require a conservative or liberal justice to break rank. Justices Elena Kagan and Sonia Sotomayor have not yet heard a major abortion case. Indeed, at the time they were appointed, abortion rights activists were worried that both had a thin paper trail when it came to abortion. Interestingly, as a federal court judge Sotomayor ruled in favor of a policy that restricted abortion in the Bush administration. And working as a legal adviser to the White House, Kagan rejected pressure from abortion rights groups, recommending that the Clinton administration support a ban on partial-birth abortion. Might either Justice conclude abortion clinics ought to be regulated for safety like other surgical clinics? Liberal jurists have historically supported regulating other kinds of industries, protecting the health and safety of the vulnerable over threats to “shut down” due to the supposed financial burden. Perhaps we will see it happen again.
4. Will Justice Kennedy focus on the narrow issues of this case?
If Kennedy’s questions are narrowly focused -- asking if the Texas law protects the health and safety of women, or why abortion clinics are closing in Texas, or whether states have the freedom to regulate medical clinics -- this may signal a fairly narrow ruling.
5. Will the ruling move toward a positive right to abortion?
Those who object to the Texas law argue that if abortion clinics shut down it would violate the rights of women in a given area. But Texas is not formally restricting abortion. At worst it is applying existing health and safety laws consistently, which may lead the abortion industry to shut down some clinics. And if the court suggests this violates the undue burden standard, it may also be suggesting women not only have the right not to be interfered with in getting an abortion, but that there is a positive right to abortion. This idea becomes even more important since both Democratic presidential candidates Hillary Clinton and Bernie Sanders believe abortion ought to be funded by the government.
Yes, this is the biggest abortion case in nearly 25 years. Some of our culture’s most cherished ideas and principles may be defined for generations to come.
[Charles C. Camosy is associate professor of theological and social ethics at Fordham University. He is author of Beyond the Abortion Wars.]