Prof. Geoffrey Stone has long been connected to the battle over abortion at the Supreme Court—from serving as a clerk to Justice William Brennan during Roe v. Wade to filing an amicus brief with fellow scholars ahead of the June 27 ruling in Whole Woman’s Health v. Hellerstedt.
Early next year, the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School has a new book coming out titled Sex and the Constitution, in which he explores the history of sex, religion and law in the context of such constitutional issues as gay rights and abortion.
Stone sat down with UChicago News this week to discuss the latest landmark abortion ruling. In it, the high court struck down a Texas law placing additional restrictions on abortion providers. The ruling is expected to have widespread effects since many states passed similar restrictions in recent years.
Was the ruling in Whole Woman’s Health v. Hellerstedt a surprise?
Most people thought that there were two more or less equally likely possibilities–either a four-to-four split or a five-to-three decision invalidating the Texas law. It all depended on Justice Anthony Kennedy. Whereas the other seven justices had pretty clear track records on the abortion issue, Kennedy had charted a more unpredictable path.
What made Kennedy unpredictable?
In 1992, only four years after being appointed by President Ronald Reagan, Kennedy surprised everyone by voting in Planned Parenthood v. Casey to reject an effort to have Roe v. Wade overruled. In that decision, Kennedy joined other justices to redefine the right to an abortion by holding that states could constitutionally regulate its exercise to protect the health of the woman as long as the regulation did not pose an “undue burden.” Applying that standard, the court invalidated several restrictions on the exercise of the right.
Fast forward 15 years to another five-to-four decision in which Kennedy, siding with the majority in Gonzales v. Carhart, upheld the constitutionality of a federal law prohibiting the use of a technique known as “partial-birth abortion,” even when doctors thought the procedure necessary to protect the health of the woman. In so doing, Kennedy seemed to embrace a watered-down version of the “undue burden” standard, suggesting that restrictions on the right are permissible as long as the government has acted “reasonably.”
In the years after that decision, about half of U.S. states enacted a broad range of laws that were purportedly designed to protect the health of the woman, but had the effect of driving abortion providers out of existence.
So what happened in this week’s ruling?
Monday’s decision involved two abortion restrictions in Texas. One restriction prohibited doctors from performing an abortion unless they had admitting privileges at a hospital within 30 miles of their clinic. The other required any facility that performs abortions to meet the standards for an ambulatory surgical center. The net effect of these requirements was to drive the vast majority of abortion providers out of existence in Texas.
Most lower courts had held such laws unconstitutional, finding that they imposed an undue burden on the right without serving any significant state interest in protecting the health of women. The question became whether Justice Kennedy would apply the undue burden standard in the relatively demanding manner in which he had first articulated it in Casey in 1992—or whether he would apply it in the more deferential way he had applied it in Carhart in 2007.
Kennedy, along with four other justices, applied the standard in the way it had first been articulated in 1992, therefore invalidating the challenged law. The decision will have a profound effect in eliminating a host of restrictions enacted throughout the nation for the impermissible purpose of limiting the constitutional rights of women.