Will Justice Kennedy Take Away Our Access to Abortion?

In 1992, the Supreme Court ruled in Planned Parenthood v. Casey that individual states have the right to regulate abortion as long as it didn’t create an “undue burden” on the right to terminate a pregnancy. Now, almost a quarter of a century later, the court is preparing to tell us exactly what that means.

Scared? You should be. 

For over five years, those who oppose the legal right to abortion have made it their mission to draft and pass a multitude and variety of abortion restrictions, with the intent that at least one would eventually work its way up the legal ladder. Now, we’ve finally made it to the top. A number of split decisions in lower courts made it nearly impossible for the nine judges to ignore the states asking it to review whether or not Targeted Regulation of Abortion Provider (TRAP) laws such as mandatory, local hospital admitting privileges or mandatory surgical center building requirements were constitutional if the implementation of these laws meant shutting abortion clinics that inevitably couldn’t comply.

The fact that both abortion-rights supporters and abortion opponents are cheering the court’s decision to hear Whole Women’s Health v. Cole shows both how divisive the current battle has become and how certain each side appears to be that they have a victory in sight. Pro-choice advocates have reason to feel positive, knowing that a number of the lower court decisions already went their way, keeping states like Wisconsin and Alabama from enforcing their own similar admitting privileges requirements, which would have shuttered the doors of the most active clinics in their states.

“For more than four decades, the Supreme Court has agreed that the U.S. Constitution protects every woman’s right to make her own decisions about her health and family,” said Nancy Northup, president and CEO of the Center for Reproductive Rights [CRR], in a statement. “Now the court must reject the schemes of politicians who believe the Constitution and the court’s precedents do not apply to them. “We are confident the court will recognize that these laws are a sham and stop these political attacks on women’s rights, dignity, and access to safe, legal essential health care.” CRR is representing Whole Women’s Health in their case.

Abortion opponents, meanwhile, think that this is the court’s chance to go back and undo the “mistake” made by Roe v. Wade in the first place, and let every state decide once more whether they want to ban abortion all together, out of protection of patients and the babies they will inevitably be forced to give birth to if legal abortion isn’t an option.

“Court watchers will appreciate that Texas again is at the forefront of the continuing national debate over abortion. In January 1973, the Supreme Court struck down Texas’s prohibition on abortion in Roe v. Wade, unleashing an extreme abortion-on-demand agenda that has claimed more than 50 million children and left millions of American women at the mercy of an under-scrutinized, inadequately regulated, and profit-driven abortion industry,” said Americans United For Life President Charmaine Yoest in a statement. “Now another Texas abortion law has presented the Court an opportunity to strike a decisive blow for women’s health and safety and to ensure that abortion providers—who are often more interested in maintaining profitability than in safeguarding women’s health and safety—comply with medically appropriate standards of care.”

But while the arguments, which are expected to start in March, will be addressed to all nine of the Supreme Court justices, court watchers and advocates on both sides of the abortion divide know that it is Justice Anthony Kennedy who will be the final decider on whether the right to an abortion still exists if it is nearly impossible to get to a clinic that performs one. The swing vote on nearly every 5-4 decision the court puts up, Kennedy—who declares himself an abortion opponent—is also the remaining member of the Casey decision that kept Roe from being overturned earlier and introduced the compromise of “undue burden.” Aging and with few years likely left on the court, he may not be willing to see one of his biggest legacies dismantled.

“Justice Kennedy has not cast a vote for abortion rights since joining the Casey compromise. That should make reproductive-rights advocates nervous. But it’s not a sign we are going to lose. In fact, there’s plenty of reasons to think Justice Kennedy is on our side here. For real,” writes legal analyst (and my co-author) Jessica Mason Pieklo at RH RealityCheck. She adds, “Ultimately I think that Justice Kennedy is a conservative, not a crusader. Like the other conservatives who have called on the Court to reverse the Fifth Circuit’s decision in Whole Woman’s Health, he will understand that closing abortion clinics is not advancing patient safety, no matter how it’s spun.”

Hopefully, Mason Pieklo is right, because this isn’t just the potential pregnant people of Texas hanging in the balance. While a ruling in favor of the state would drive the state down to just ten operating clinics within five urban areas, it would also ripple out to other state that have been appealing their own blocked laws. Wisconsin would likely lose Affiliated Medical Services in Milwaukee at a time when the Planned Parenthood clinics locally are already overbooked and reproductive rights groups are organizing overnight stays for patients needing appointments. Alabama would be down to just one clinic that could remain open. Louisiana’s ongoing legal fight over its own TRAP bill would likely leave one clinic remaining, and could leave most of the Gulf Coast virtually provider-less, even if Mississippi’s sole clinic is allowed to operate. Add in the onslaught of red states who have yet to pass their own TRAP bills but have them ready to go (Florida, I’m looking at you) and we are talking about a crisis of access like we have not seen since 1972.

In March 2016, arguments in WWH v. Cole are expected to begin. In June, the fate of abortion access will likely be in the hands of one justice. Will he uphold the rights that he himself sought a compromise on in the ’90s, or will he join with the conservative wing of the court and make legal abortion a right in name only?