Supreme Court and Abortion

(Well worth watching the video in the New York Times link above!)

On Tuesday 1 March 2016, the Supreme Court heard oral arguments in the case of Whole Women’s Health v Hellerstedt regarding the HB2 law in Texas. This law requires abortion clinics to have hospital admitting privileges and hospital like facilities – in requiring this it would make many of the State’s abortion clinics close. Some have argued that this is what Texas is trying to achieve by the implementation of this law. It is worth noting that the debate is largely over ‘undue burden’ – i.e. whether the closure of these clinics would mean that it would be almost too difficult for women in the State to get an abortion.

This is useful to students in a plethora of ways. Firstly, with the death of Scalia, the Court appears split 4-4 on this issue (although this is only guess work!). A 4-4 draw would mean that the decision of the lower Court stands. In this case, the decision of the Fifth Circuit court was in support of Texas. It is also useful for ideology as unsurprisingly the Court is split straight down liberal/conservatives lines with Kennedy suggesting perhaps the decision should be returned to the lower court. Certainly the role of Kennedy is going to be pivotal and good evidence for the importance of the swing justice.

It also has clear uses for Unit 3 – the day of the oral hearings in Court saw considerable protests outside of the Court. A good student would comment that this was less about getting the Justices to change their mind (they are, after all, neutral, independent, etc and therefore protected from public opinion) but to gain media attention on the issue. It is also a case with huge amounts of amicus briefs signed (http://www.scotusblog.com/case-files/cases/whole-womans-health-v-cole/) including from the National Abortion Federation and the Conference of Catholic Bishops.

Federalism is also key here – the United States Supreme Court deciding over the law in individual states – a great example for this topic, and for debate in this topic given that the Supreme Court is unelected.

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