As Scott Lemieux observes at TAP today, the stakes involved in judicial review of the Mississippi law aimed at shutting down the state’s sole abortion clinic could be larger than those involving women in Mississippi alone. Since a federal judge has imposed a temporary stay on enforcement of the law pending a hearing, an appellate court will likely soon get the case, and then it could eventually make its way to the Supreme Court, since the law presents a very direct challenge to the “undue burden” standard established by the Court in Casey v. Planned Parenthood, the 1992 decision that set Roe v. Wade on a firmer foundation. And that’s where it could get dicey, as Scott explains:
To uphold Mississippi’s regulatory framework would be to effectively overrule Roe and Casey. What would happen should this case get to the Supreme Court, however, is unclear. Theoretically, there are five votes on the Supreme Court for upholding Roe v. Wade. But one of these votes, Justice Kennedy, has found only one kind of regulation (spousal notification) to be an “undue burden,” and wrote an opinion upholding a federal ban on partial birth abortions rife with the sexist assumptions of anti-choice activists.
Indeed, fear of Justice Kennedy’s “evolution” on abortion policy since 1992 has played a big role in inhibiting reproductive rights advocates from challenging the rash of “fetal pain” laws being enacted in states around the country. It’s entirely possible, conversely, that one of the motives of the anti-choicers championing the Mississippi law was to generate a court challenge that could lead to a dramatic departure from Roe and Casey.
No wonder Scott says “the best-case scenario would probably be a lower appellate court decision holding the new law unconstitutional that the Court declines to review.”
And lest we forget, if there are legitimate fears the Court as currently constituted is ready to gut the right to choose, then the direction of a Court reshaped by a President Mitt Romney–who has all but promised an anti-Roe Justice–won’t be in question at all.