The Right to Privacy IV Abortion Rights III Lecture 32 Chapter 10 The Right to Privacy IV Abortion Rights III

This Lecture Chapter 10 More on Abortion Rights Pages 425-427 The Right to Abortion III Partial birth abortion laws Whole Women’s Health v. Hellerstedt (2017) 1997-1998 Supreme Court

Some Changes to the Court happen Under President Bill Clinton 1993 White Ginsburg 1995 Blackmun Breyer With Ginsburg, the balance of the Court shifts to the pro-choice side 6-3 on the central holding However, Kennedy and O’Connor must still uphold restrictions

Stenberg v. Carhart (2000) Stenberg v. Carhart (2000) Challenge to a Nebraska law that banned partial birth abortion Only exception was for the life of the mother The doctor argued performance of the procedure was a safety issue and the law was an undue burden Breyer, J. for the 5-4 Court He found it was an undue burden O’Connor concurred saying that there needed to be a health exception Kennedy dissented on the grounds that this law would be allowed under Casey Thomas, J. joined by Rehnquist, C.J. and Scalia, J. reiterated that they felt that Roe was incorrectly decided and there was no right to an abortion in the Constitution Scalia, J. also criticized Kennedy for adopting the undue burden standard

Two more changes Under George W. Bush 2005 Rehnquist  Roberts 2006 O’Connor  Alito An author of Casey replaced by a 3rd Circuit judge that had voted to uphold all the provisions of the law

Gonzales v. Carhart (2007) Gonzales v. Carhart (2007) Challenge to the federal Partial Birth Abortion Ban Act of 2003 This was very similar to the Nebraska law Kennedy, J. for a 5-4 Court They did not explicitly overrule Stenberg, but somewhat distinguished it But found that a health exception was unnecessary for this procedure Casey said that the state had an interest in fetal life Left open as applied challenges if the woman’s health really is in danger

Gonzales v. Carhart- II More on Gonzales v. Carhart Thomas, J. joined by Scalia, J. concurring They noted that there is no constitutional right to an abortion in their thinking But they went along with this case But note that Roberts, C.J. and Alito, J. did not join in this concurrence Ginsburg, J. joined by Stevens, Souter, and Breyer, JJ. Dissenting She says the majority did not follow precedent She also had a problem with the lack of a health exception

More Court changes Under President Obama 2009 Souter Sotomayor 2010 Stevens Kagan In 2016, Scalia dies, but the seat is left vacant by Republicans in the Senate not taking up the nomination 2017 Scalia Gorsuch

The 2010 Midterms In 2010, Republicans win a massive landslide across the country They take many governor’s and state legislatures Many of these states immediately start to pass severe restrictions on abortions Many of these changes on their face might seem benign, but their effects were to close down many abortion facilities within their states, and one of these states was Texas

Whole Women’s Health v. Hellerstedt (2016) Background Challenge to a massive Texas bill restricting abortion rights Provisions of the law challenged Abortion providers must have admitting privileges in a hospital within 30 miles Abortion providers must meet the same standards as ambulatory surgical centers and must upgrade to the standards of a hospital room The effect of this was to shut down a large number of abortion providers in the state One estimate said it would leave only five of 42 open, and only in the major cities, leaving the rural areas and the Rio Grande Valley with no providers

Whole Women’s Health v. Hellerstedt- II Arguments For Whole Women’s Health These provisions would shut down many clinics The intent was to do this by the Legislature These regulations do not relate to maternal health, but place an undue (or substantial) burden on the right of a woman to seek an abortion in Texas For Texas There is no undue burden Under Casey, the state has an interest in regulations that aim to promote maternal health and these regulations do just that Women in West Texas could go to get an abortion in New Mexico

Whole Women’s Health v. Hellerstedt- III

Whole Women’s Health v. Hellerstedt- IV Breyer, J. for a 5-3 majority The Court strikes down these two restrictions "Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution” In effect, they find the restrictions are not health related, but mask an intent to shut down as many abortion clinics as possible No justification for the admitting requirement for women’s health no medical benefits Many hospitals now ran by religious institutions He rejects the arguments made with regard to Kermit Gosnell, an abortion provider in Philadelphia, as he said these regulations are unnecessary Cutting the number of abortion clinics where women have to travel much further is an undue burden

Whole Women’s Health v. Hellerstedt- V Ginsburg, J. concurring She notes that abortion is a very safe procedure Even safer than childbirth she argues And many of these procedures not subject to these restrictions Any law making abortion access more difficult in the name of safety should be struck down

Whole Women’s Health v. Hellerstedt- VI Thomas, J. dissenting Should have deferred to the legislature here Court misinterprets the undue burden standard “Reimagines it” Alito, J. dissenting, joined by Roberts, C.J. and Thomas, J. The link between the law and closures of abortion clinics may be only casual Other things may have had an effect Texas may have been motivated in these health and safety measures by the Gosnell case Not a sufficient number of women were affected by this law to constitute an undue burden

Next Lecture Chapter 10 We move to gay rights What rights do LGBT persons have in their own privacy? This time private sexual activity Lawrence v. Texas (2003) Pages 427-437