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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Whole Women’s Health v. Hellerstedt- III

13. 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

14. 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

15. 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

16. 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)
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