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How A Conservative-Leaning Supreme Court Could Chip Away At Abortion Rights

Jul 12, 2018
Originally published on July 12, 2018 6:59 pm
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AILSA CHANG, HOST:

There's a lot of speculation about whether a newly configured Supreme Court will overturn Roe v. Wade. What is clear is that the high court could further narrow the landmark ruling. To understand how that might happen, you have to go back to 1992 to another Supreme Court case called Planned Parenthood v. Casey. I asked Gillian Metzger, a professor at Columbia Law School and a former clerk to Justice Ruth Bader Ginsburg, to walk us through how that case is relevant.

GILLIAN METZGER: Well, Casey, to begin with, reaffirmed the basic principle of Roe that women have a constitutional right to choose to end a pregnancy.

CHANG: OK.

METZGER: But what Casey also did was it adopted what's known as the undue burden standard as the way in which a court's supposed to assess whether or not a restriction on abortion is constitutional.

CHANG: And what constitutes an undue burden?

METZGER: Well, that's really the key question, right? And the way the court described it in Casey is they said, look; a measure that imposes a substantial obstacle on a woman's ability to access abortion is unconstitutional. But then you have to figure out how you're going to measure what counts...

CHANG: Right.

METZGER: ...As a substantial obstacle. How many women have to be impeded in their access to abortion for a substantial obstacle to exist? Do you assess different measures seriatim, each one on its own impact? Or do you look at what their whole impact is together? And in particular, do you assess what the benefits are of a particular measure and compare those benefits to its burdens, right?

So if a state is enacting a measure in the name of health but that measure actually doesn't advance women's health at all, can we take that into account in determining whether or not the burdens that it imposes might be undue? And those were all questions that Casey really teed up.

CHANG: And in the midst of all these questions that are still left open, how have states responded? I mean, what types of restrictions have states sought to put on abortion access?

METZGER: Right. So one reason why abortion is going to be a battleground for the court going forward is that states constantly impose new restrictions on abortion of different kind. So you've seen in - immediately after Casey - Casey itself upheld a waiting period. A woman would have to get information on abortion then wait a certain period...

CHANG: Right.

METZGER: ...Before she could get the abortion. The court upholds that. So you see a lot of waiting periods come into play.

CHANG: OK.

METZGER: Then you also see restrictions on certain methods of abortion. The Court famously upheld the federal Partial-Birth Abortion Ban in 2007. You also see a raft of measures that would impose what are really quite onerous requirements that an abortion facility become a surgical ambulatory center and meet a whole bunch of very expensive requirements that are meant really for more invasive surgery and not medically required at all for abortion. States required that doctors at abortion clinics have admitting privileges at hospitals within a certain area. So those are some. More recently we've seen measures that have banned abortion after six weeks or 15 weeks. Those have been stayed by courts, but those may very well go forward. There's a whole raft of these measures.

CHANG: Out of all the regulations you've listed, how many of them are getting challenged in court now and could very quickly end up before the Supreme Court even next term?

METZGER: A lot of them are currently being challenged. I think there are cases pending in the lower courts right now that could make it up to the Supreme Court if not next term then the term after.

CHANG: And when these challenges come up, the Supreme Court will likely lean conservative. How does that shift the strategy for abortion rights advocates? I mean, will they focus even more now on legal challenges at the state level, to state laws reducing access to abortions?

METZGER: Quite probably. One important point to note here is that the Supreme Court has leant conservative for a while. Casey was a pullback. So abortion advocates have been very careful in thinking about what their strategy should be for decades. And they will simply become more cautious now.

That said, you know, if you've got a state that's imposing a ban on abortion wholesale, that needs to be challenged. It's directly at odds with Casey as well as Roe. And I think abortion advocates would be hard pressed not to bring a challenge if a state were to enact that kind of a measure.

CHANG: Gillian Metzger teaches constitutional law at Columbia Law School. Thank you.

METZGER: Thank you for having me. Transcript provided by NPR, Copyright NPR.