Thursday, December 13, 2012

Thanks for nothing, Justice Kennedy!

I should be writing about the crazy-ass anti-choice law rammed through the Michigan Senate during the lame duck session. But, I just can't. First, because it pisses me off too much. But also because I haven't done enough research to figure out which clauses are likely to survive a legal challenge.

I hope most people understand that American judges are bound both by law and precedent. (I refuse to believe the country is full of people as ignorant as the ones who use the comments section to rant about feminazis and abortionists.) And while Roe v. Wade is the iconic case which legalized abortion, it's really the cases which came after that shaped women's reproductive rights. So, when Michigan passes a law that bans abortions after twenty weeks, or outlaws tele-medical prescription of pharmaceutical abortion drugs, I think, "Thanks, Justice Kennedy. You really screwed us."

In 1973, the Supreme Court's decision in Roe v. Wade legalized abortion within the trimester framework. It held that women have a constitutionally protected right to control their own bodies during the first two trimesters of pregnancy. While the government may have some interest in protecting the potential life inside of her, it cannot assert that right until the third trimester. Any regulation before that should only be to protect the health of the mother.

Sounds like a workable system we could basically live with, right?

Cut to Planned Parenthood v. Casey in 1992, when Justice Kennedy found that the state's interest in protecting a potential citizen begins at the moment of conception. And the state may enact legislation with the sole purpose of persuading women not to have an abortion.


Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.

There it is. The moment when it became A-OK to assume our ladybrains weren't smart enough to make decisions about our ladyparts without government help.

Oh, but don't worry, girls! Because the good Justice will protect you if the government gets too crazy while it's encouraging you to contemplate those "philosophical and social arguments" against abortion.


Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.

Well, that's settled then! The state can do anything it likes as long as it doesn't pose an "undue burden" on women seeking to exercise their constitutionally protected right to have an abortion. Problem solved.

Except for the little matter of defining what an "undue burden" might be.

And that's how we got to spend 20 years litigating whether a bunch of state laws unrelated to women's health placed an "undue burden" on their liberty. Hello transvaginal ultrasounds, mandatory waiting periods, and "fetal pain laws."

So, today's $5 goes to Planned Parenthood of Southeastern Pennsylvania who brought this case in 1992 and continues to fight for women today. 

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