Supreme Temptation on Abortion Policy

It was no big surprise that a three-judge panel of the conservative Fifth Circuit Court of Appeal upheld Texas’ new abortion restriction law, which has already forced (as was, of course, intended) a drastic reduction in the availability of abortion services as clinics struggle to meet new medical requirements that have little or nothing to do with patients’ health.

But ThinkProgress‘ Ian Millhiser makes a persuasive case that the real news here is that the opinion issued by the 5th Circuit judges was a signed, sealed and delivered invitation to the Supreme Court to issue a landmark decision “revising” Roe v. Wade and Planned Parenthood v. Casey on grounds that circuit courts now disagree on how to implement the “undue burden” standard set out in Casey for adjudicating state-enacted abortion restrictions.

And like a lot of nervous pro-choice folk, Millhiser points to the wavering views of Anthony Kennedy as cause for alarm if the case is taken up by the Supremes:

[Fifth Circuit opinion writer Judge Jennifer Walker] Elrod, it should be noted, is not wrong to be confident her decision will be affirmed if it is heard by the justices. Justice Anthony Kennedy, the closest thing the Supreme Court has to a swing vote on abortion, hasn’t cast a pro-choice vote since 1992. As a justice, Kennedy’s considered 21 different abortion restrictions and upheld 20 of them.

And Kennedy’s opinion in Gonzales v. Carhart upholding the federal “partial-birth abortion” ban (to use its popular if fictional name) really did inaugurate the current era of spurious “health” regulations being used to reduce access to abortions.

So yeah, it’s time for some fear.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.