Justice Anthony M. Kennedy… [is] the author of the 5-to-4 opinion that upheld the federal ban on so-called partial birth abortion back in 2007, and abortion-rights advocates have viewed with something close to dread the prospect that he could play a similarly decisive role in the Supreme Court’s next abortion case.
That case has arrived….
Cline v. Oklahoma Coalition for Reproductive Justice… is an appeal by the state of Oklahoma from a ruling by its Supreme Court striking down a law that limits doctors’ ability to prescribe [RU-486]… [It] requires doctors to follow the dosage and other instructions on the F.D.A. label. Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice. (Spoiler alert: it isn’t.)…
Planned Parenthood v. Casey was the 1992 decision that reaffirmed the basic right to abortion while also permitting states to adopt new restrictions. In its opinion, which Justice Kennedy joined, the court said it would permit restrictions that did not impose an “undue burden,” defined in the opinion as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” More than two decades later, all the important words in that definition of undue burden remain contested….
~ Excerpt from op ed, “THe next abortion case is here,” by Linda Greenhouse in the New York Times, September 4
Along with Justice Kennedy, Justice Sandra Day O’Connor was also a member of the five-justice majority in 1992. With Justice O’Connor replaced by Justice Samuel A. Alito Jr., there may no longer be a majority on the court to strike down any burden on access to abortion, even one that is obviously and purposefully “undue.” All that binds the current court to the Casey standard – whatever that standard can be said to mean today – is stare decisis, respect for precedent. As the Roberts court begins Year 9, that may not count for much.