The Abortion Issue Returns

According to the Guttmacher Institute, nineteen states passed forty-three new restrictions on abortion in 2012 - on top of ninety-two restrictions passed in 2011. The most recent changes came in Arizona, Kansas, Louisiana, Oklahoma, South Dakota, and Wisconsin. A Guttmacher report states that the restrictions were in four general areas:

• Mandating unnecessary medical procedures. The best known of these practices is requiring an ultrasound before any abortion, so that the woman is compelled to listen to a fetal heartbeat. Eight states now require these ultrasounds.
• Increased regulation of abortion providers. These rules, notably strict in Michigan and Virginia, require abortion providers to have hospital-like facilities, while leaving other, similar outpatient institutions untouched.
• Hospital privileges. Three states - Arizona, Mississippi, and Tennessee - recently added requirements that abortion providers have admitting privileges at local hospitals.
• Limits on later abortions. Louisiana and Arizona have banned abortion after twenty weeks, and other states are weighing similar restrictions. In a law scheduled to go into effect this summer, North Dakota effectively banned abortions after six weeks.

The motivations behind these new laws are not difficult to discern. The ultrasounds are supposed to shock women into giving up their plans for abortion; the regulations are designed to raise costs for abortion clinics and drive them out of business; the hospital-privileges rules are intended to limit the number of doctors who can perform abortions, or eliminate them altogether, especially in states with very few clinics to begin with. (Mississippi has only one.) The rules on later abortions are intended to build on the pro-life movement's earlier success in banning so-called partial-birth abortions.

The question now is whether the Supreme Court will uphold any or all of these rules. Two Supreme Court cases are critical to post-Roe v. Wade abortion-rights jurisprudence. In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, a plurality opinion written jointly by Sandra Day O'Connor, Anthony Kennedy, and David Souter upheld the "central principle" of the 1973 decision in Roe. "It is a rule of law and a component of liberty we cannot renounce," the three Justices wrote. Building on an idea that O'Connor had raised in earlier opinions, the trio said that abortion restrictions would be rejected "only where state regulation imposes an undue burden on a woman's ability" to decide whether to have an abortion. What's an "undue burden"? In 2007, in Gonzales v. Carhart, Kennedy wrote an opinion upholding the federal law against late-term abortions. Reflecting a very different sensibility from his opinion in Casey, Kennedy appeared to give legislators broad latitude to regulate abortion. "The State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn," he wrote. An "undue burden" in 1992 looked very different from an "undue burden" fifteen years later.

The lower courts have generally found that many of the new laws do indeed amount to undue burdens. Earlier this month, the Ninth Circuit Court of Appeals struck down Arizona's new, twenty-week limit on abortions on that ground. Similar legal challenges to the North Dakota law began this month. Last December, the Oklahoma Supreme Court invalidated, as an undue burden, that state's new ultrasound law, which requires placing the image in front of the woman.

But will the Supreme Court agree with the lower courts, or has the definition of an undue burden changed yet again? Kennedy is the only Justice from the team that wrote Casey left on the Court. It seems a safe assumption that Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito will approve all the new restrictions, while Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will reject them. As in 1992 and 2007, the decision will likely turn on Kennedy's views.

Kennedy's views on these specific issues seem difficult to predict, and thus the outcomes of the challenges to these laws are, too. The new cases will reveal whether his drift away from Casey continues, or whether he has a core commitment to abortion rights that the new restrictions will finally run up against. The only certainty is that abortion will soon return to a central place before the Justices, and in the political arena.