The Supreme Court Just Very Clearly Called Bullsh*t on

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Jun 27, 2016 at 5:47 PM

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The Supreme Court Just Very Clearly Called Bullsh*t on Texas

Breaking down the biggest reproductive rights case in decades.

BY CHARLES P. PIERCE
JUN 27, 2016

OK, so I've figured it out. If you want to get Justice Anthony (Weathervane) Kennedy on board on a contentious social issue, you have to get him in June, when Washington reverts to its original meteorological role as a marble-encased skillet.

Last June, Kennedy joined the majority (and wrote the majority opinion) in the case that legalized marriage equality nationally.

On Monday, he joined a 5-3 majority in what possibly is the biggest victory for the right to choose since Roe v. Wade itself. In the case of Whole Woman's Health v. Hellerstedt, the Court absolutely eviscerated the mock concern for women's health as manifested by the phony anti-choice regulations imposed by the state of Texas.

There are a few other states that have engaged in this chicanery, too. It's hard to see how similar regulations survive there, either.
Writing for the majority, Justice Stephen Breyer spent a great deal of complicated legalese to demonstrate that he and his fellow members of the majority did not arrive in chambers that morning on a turnip truck.

Quote:

"The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so."

Justice Ruth Bader Ginsburg minced even fewer words.

Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements. See ante, at 31; Planned Parenthood of Wis., 806 F. 3d, at 921–922.

See also Brief for Social Science Researchers 9–11 (comparing statistics on risks for abortion with tonsillectomy, colonoscopy, and in-office dental surgery);

Brief for American Civil Liberties Union et al. as Amici Curiae 7 (all District Courts to consider admitting- privileges requirements found abortion "is at least as safe as other medical procedures routinely performed in outpatient settings".

Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law "would simply make it more difficult for them to obtain abortions."

Planned Parenthood of Wis., 806 F. 3d, at 910. When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.

(You gotta love faute de mieux there, by the way.)

What has become clear over the last two weeks is that, since the death of Antonin Scalia, for whatever reasons, Kennedy seems to have discovered just how far to the right Republican politics and Republican policies have drifted.

He joined in the majority opinion on the Fisher 2 affirmative action case. That case never should have reached his desk in the first place.

And now, with this one, he and the other four people who made up the majority looked at the pious nonsense about women's health behind these laws and called bullshit very clearly.

At the very least, the concept of "undue burden" as stated in Planned Parenthood v. Casey is much more clearly defined, and not in a way that's going to make the anti-choice charlatans happy.

If you're looking for What This All Means in regards to importance of the Court in the presidential election, you can check out Justice Clarence Thomas' dissent.

"The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution…But our Constitution renounces the notion that some constitutional rights are more equal than others. ... A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment.

Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear."

Yeah, he's not happy.

Curiously, although the decision came down almost at the moment the rally in Cincinnati kicked off, neither Senator Professor Warren nor Hillary Rodham Clinton mentioned it at all from the podium.

I'm sure this had nothing to do with Cincinnati and its surrounding area long being a hotbed of anti-abortion activism. I am such a terrible cynic.

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