The Supreme Court’s Cultural Winners The liberals outlaw nearly any state abortion regulation.

Posted By on June 28th, 2016

http://www.wsj.com/articles/the-supreme-courts-cultural-winners-1467068464

An important, persistent question of our times is how to account for the wide political and social polarization between liberals and conservatives. Monday’s 5-3 Supreme Court decision striking down a Texas abortion law reveals what’s beneath these divisions.

The Court’s opinion in Whole Woman’s Health v. Hellerstedt was about abortion certainly, but the argument between the majority and minority goes deeper. In the final paragraph of his dissent, Justice Clarence Thomas went to the heart of the matter.

He noted first the divisions that always emerge from an abortion case: “Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object.” But, he continued, “the entire Nation has lost something essential.” He said the majority’s reasoning is an acknowledgement that “we have passed the point where ‘law,’ properly speaking, has any further application.” Justice Thomas is accusing his colleagues of lawlessness.

If putting it that way sounds familiar, it is because Justice Thomas was quoting from a law review article by the late Justice Antonin Scalia. Bluntly stated, the dissents by Justices Thomas and Samuel Alito accuse the majority of manipulating the Court’s precedents to police rights favored by liberal politics and to delegitimize the claims of their opponents. The favored right in this case is access to abortion.

In 2013 the Texas legislature passed a law that doctors doing abortions must have admitting privileges at a hospital within 30 miles of the abortion clinic. It also said the clinics had to equal the health and safety rules of ambulatory surgical centers. The Court’s majority struck down the entire law as a violation of the Constitution because its provisions impose an “undue burden” on a woman’s right to an abortion. It suggested that the law’s hospital-admissions rules for abortion doctors would harm women in rural counties.

The phrase “undue burden” is the famous legal test of state regulatory authority as defined in the 1992 abortion case, Planned Parenthood v. Casey. The point of Casey was to establish that states had the right to regulate abortion absent an undue burden on women. The point of Monday’s Texas decision is to tell the states to forget Casey, that the legal path is so narrow as to make state regulation of abortion a fiction. CONTINUE AT SITE

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