As you know, on March 2 the Supreme Court heard arguments on Whole Woman’s Health v. Hellerstedt, a case that considers the constitutionality of a Texas anti-abortion law (HB 2).
I write because you are obviously the swing vote. I am familiar with your record and know you love our Constitution. But Justice Kennedy, this is not an average case. It is the result of a constitutional crisis and your ruling will determine whether or not that crisis is resolved. Will states be obliged to obey a fairly clear Supreme Court standard or will they continue to brazenly ignore the Court and the Constitution—and get away with it?
When you wrote the last major Supreme Court decision on abortion, Gonzales v. Carhart, 550 U.S. 124 (2007), you laid out specific constitutional principles, quoting from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992):
Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” (Citations deleted.)
Attorneys for Texas abortion providers have done a fine job proving that HB 2 imposed, and was intended to impose, an “undue burden” on women seeking abortion.
But Justice Kennedy, also consider the rest of America. Since your 2007 ruling, states have enacted about 350 new restrictions on the constitutional right to abortion, 57 of them in 2015. All of these laws were enacted with the “purpose…to place a substantial obstacle in the path of a woman seeking an abortion.” And nearly every one is “a substantial obstacle to the woman’s exercise of the right to choose” because that’s all the anti-abortion movement is interested in enacting.
That is the reality of the political battle over abortion. If you deny this reality—which everyone can see—you are the emperor with no clothes, you reward the bald mockery of Supreme Court decisions, and our Constitution loses its authority.
Let’s be more specific. In recent years:
And just so far this year, at least 241 anti-abortion bills have been introduced in state legislatures, including all of the above and:
Let us not be fools. We all know the anti-abortion movement is engaged in a strategy of “massive resistance” against Roe v. Wade and subsequent rulings upholding the right to abortion. Like the forces of segregation in the 1950s to 1970s, it has orchestrated this effort to disobey the federal courts, pressing and pressing in the hopes that Roe will be overturned either in fact or in effect.
If the constitutional right to abortion—recognized by the Supreme Court for 43 years—can be effectively destroyed by a concerted, well-financed political campaign, what constitutional right is safe?
Justice Kennedy, if you love the Constitution you need to stand by it, now.