The Scary Legacy of Justice O'Connor's Abortion Decisions

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The Supreme Court has taken review of the Texas abortion case. The law, which would impose surgical unit standards and affiliation with unwilling hospitals on all clinics will close all but ten abortion providers in the entire state of Texas. Women in West Texas, the lower court advised, would just have to drive to New Mexico to get their reproductive rights. Last June, the Court stayed the effect of the decision, in a 5/4 vote, which must have included Justice Kennedy. Now they are going to take it up.

There is the ever-present possibility that the Court decides this is the moment to abandon all abortion rights and outright reverse the 1973 landmark decision in Roe v. Wade. But the likeliest outcome is that they will, for the umpteenth time, try to figure out what constitutes an "undue burden" on the longstanding constitutional right. It is difficult to imagine worse guidance on such a critical issue. Each time the Court decides the due-ness of the burden, they are basically imposing their private notion of what female American citizens should be forced to bear.

This guidance-free standard is the poisoned gift of the now long retired first woman Justice, Sandra Day O'Connor. Although it sounds like her elusive centrism, the truth is she excavated it from a brief submitted by the profoundly anti-abortion Reagan Justice Department in 1983, in the first abortion case she heard. She was a dissenting minority then, but after several Republican appointments, she captured the majority, and, in, Casey v. Planned Parenthood, in 1992 "undue burden" definitively superseded the original abortion decision. What it really means is whatever the then existing swing vote thinks it means. And that vote is Justice Anthony Kennedy.

It's a frail reed. If Justice Kennedy votes to strike down the Texas law, it will be his first vote for women's reproductive rights in twenty four years - almost a generation exactly. He concurred specially to scold the poor pregnant women who South Carolina illegally searched for cocaine, he voted for sex discrimination in immigration law, he cut radically back on protecting whistle blowers under the civil rights act, and he never found a family leave provision he could uphold. But it's the undue burden and the personal preference of the swing Justice governs.

It makes you long for the good old days of Justice Blackmun's much maligned trimester analysis in Roe v. Wade. So-called liberal legal scholars gave Blackmun hell for with titles like "The Wages of Crying Wolf." Feminist icon Justice Ruth Bader Ginsburg, of all people, joined the pile-on in 1984, writing that Roe had gone too far, trying to specify a standard. Instead, she opined, the Court should have just struck down the onerous Texas law (sound familiar?) and wait to see what happened next.

Read Roe now, and it looks like the Emancipation Proclamation. What did Blackmun say? He said that it's the woman's well being that matters. In the first trimester, you can do nothing, because the woman's health is always better protected with an early abortion than going to term. The next three months you can only regulate if the regulation promotes . . . wait for it . . . the health of the woman. Only after the fetus is viable outside the womb, after six months, does an interest arise that is not about the woman. No talk of burdening women in Roe v. Wade.

In her criticism of Roe, Ginsburg also asserted that abortion should be decided as a matter of women's equal citizenship. There, she is dead on. If Anthony Kennedy is ready to reconsider his support for burdens on women, he could not do better than to abandon O'Connor's standard. Women are citizens: does the law, directed only to women, make their lives better? If not, strike it down.

Linda Hirshman is the author of Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. She will be signing books at the 38th Annual National Press Club Book Fair, in partnership with Politics & Prose on Tuesday, November 17 in Washington, D.C..