Should Women Have as Much Protection Against Activist Meddling As States Trying to Execute Prisoners?

Largely lost in the glare of publicity over last week’s two big landmark decisions–and some others like the congressional redistricting case that got a lot of attention–was an Eighth Amendment decision, Glossip v. Gross, that upheld the right of states to use a controversial drug in lethal injections because pharmaceutical companies had stopped making a more effective drug available. The 5-4 decision turned on the rather novel idea that death penalty opponents had pressured the companies to take this position, and therefore had no moral high ground in demanding that states succumb to this indirect “abolitionist” strategy.

At Ten Miles Square today, Sonja West, a professor from the University of Georgia School of Law (my own alma mater), notes that at least four of the judges taking this position seem to feel very differently when the issue is abortion and “abolitionists” are seeking to limit its availability on specious medical grounds:

The Supreme Court has yet to decide whether it will hear two cases challenging laws that place new requirements on abortion providers in Texas and Mississippi. (Late Monday, the Court issued a stay on enforcement of the Texas laws that would shutter most of the state’s clinics). These new regulations include requiring abortion providers to secure hospital admitting privileges and requiring clinics to be outfitted as ambulatory surgical centers. If upheld, the laws would lead to the closure of the last remaining abortion clinic in Mississippi and leave Texas with a mere handful of clinics only in major urban areas. The closures would force women in rural Texas who wish to exercise their constitutional right to terminate a pregnancy to travel hundreds of miles to do so, while those in Mississippi would need to leave their state entirely….

Yet four of the same justices who were so alarmed about the thought of states being forced to slow down or stop their capital punishment machines supposedly because of the actions of anti-death penalty bullies do not appear bothered by the indirect meddling of third party “abolitionists” who are interfering with the rights of women to access abortion. Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas and Justice Alito all dissented from the Court’s stay in the Texas case yesterday, objecting to even temporarily allowing some of the state’s clinics to remain open while the Court considers whether to hear the case.

There are, of course, differences between capital punishment and abortion—all of which make the abortion obstructionism far more problematic. The primary distinction being that only one involves an actual constitutional right.

Something tells me that if the Mississippi or Texas law does wind up before SCOTUS, West’s citation of the lethal injection decision as compelling some judicial notice of the mendacious game being played by anti-choicers pretending to care about maternal health will wind up in some amicus briefs and Justices’ questions during oral argument.

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.