IdeaLog

Dear Justice Kennedy

Posted on March 1, 2016

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:

• At least 16 states have enacted Targeted Regulation of Abortion Providers (TRAP) laws like HB 2 which require clinics to meet the same building and equipment standards as mini-hospitals and/or require doctors to have admitting privileges at a nearby hospital, neither of which has any legitimate medical purpose. These laws are entirely designed to shut down abortion clinics, and they successfully do so. At least 162 providers have closed since 2011.
• 20 states have enacted laws to limit abortion to the first twenty weeks of pregnancy or less, which is in clear violation of decades of Supreme Court rulings.
• At least 7 states have enacted laws to ban the use of medication abortion, even though it causes no serious complications in more than 99.9 percent of cases, thus making it safer for use than Tylenol, aspirin and Viagra.
• At least 9 states have enacted laws to ban the use of telemedicine for medication abortion for no reason other than to prevent access to abortion.
• At least 13 states have enacted laws mandating that doctors to deliver an anti-abortion script to the patient, often including assertions that are medical lies, although it persuades no one and the only purpose is to make abortion procedures more unpleasant.
• At least 4 states have enacted laws to force a woman seeking an abortion to have an ultrasound beforehand, despite the unassailable fact that there is no medical reason for it and its only purpose is to shame and bully women.
• At least 9 states have enacted laws requiring or extending a waiting period before a woman can obtain an abortion, even though there is no medical reason for delay and, to the contrary, this delay makes abortion considerably less accessible to women who live some distance from a clinic.
• At least 10 states have enacted laws to ban private health insurance from covering abortion care, or make coverage impractical, for the sole reason of making abortion less affordable.

And just so far this year, at least 241 anti-abortion bills have been introduced in state legislatures, including all of the above and:

• Bills to prohibit abortion clinics within 2,000 feet of a school.
• Bills to ban abortion for genetic abnormalities or Down syndrome.
• Bills to require clinics to submit private financial records.
• Bills to require doctors to file detailed reports about abortions.
• Bills to define life as beginning at contraception.
• Constitutional amendments to ban abortion.

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.