The Supreme Court’s composition, recent opinions and policy related to rulings by the Court will probably dominate the discussion.
The oddly open question of whether the Administration’s health care plan, PPACA is constitutional will come up. Dahlia wrote about it earlier this week
The first case was a suit brought byLiberty University, a religious college in Lynchburg, Va., challenging the individual mandate as a violation of both the Commerce Clause and religious freedom (it claims that the ACA forces taxpayers to finance abortions). Last fall, federal District Judge Norman Moon dismissed that suit, finding the mandate a permissible exercise of congressional power under the Commerce Clause, which allows Congress to regulate economic activity.* The second suit was brought by Virginia Attorney Gen. Ken Cuccinelli, claiming that the ACA violates a hastily enacted state law that sought to exempt everyone in the state from the insurance mandate. Federal Judge Henry Hudson agreed, and struck down the individual mandate last winter.
Nationwide, five federal judges have ruled on the constitutionality of the ACA. Three have upheld it, while two have struck it down. More federal appeals courts are teed up to hear yet more cases this summer.
In some ways, this is a test of the Republicans systematic construction of a judicial firewall, in the lower courts, to preclude Democratic policies’ implementation. More importantly, this case is a test of how far the Roberts Court will go in overturning precedent, and redefining Constitutional interpretation. Of course, what that really means is whether Justice Kennedy will find a tortuous way to overturn precedent without actually admitting to doing so, as with Casey v Planned Parenthood.
As Dahlia said last month Casey is shepherding in The Death of Roe v Wade
There’s one other (often forgotten) player in this elaborate game of chicken over reproductive rights, and that’s the Supreme Court. Given that public opinion has changed virtually not at all since Roe v. Wade, my guess is still that the Roberts court is as uninterested in overturning the law as its challengers are in forcing the issue. It does not want to be the court that makes abortion illegal, or all-but-illegal, in America. The backlash would be staggering. The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact. If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again.
Just to be clear then: If Terry O’Neill is right, and fear of Samuel Alito is preventing anyone from challenging the host of increasingly invasive, paternalistic, and degrading state abortion regulations, it’s not just abortion foes who are getting what they want. The court is, too. Abortion will have become all but impossible in America—for poor, minority, and rural women in particular—in direct contradiction to a Supreme Court decision, and the court itself will have done nothing to stand in the way. Is that what supporters of the right to abortion, not to mention the rule of law, really want? At the very least, let’s put it to the test.
How did South Dakota do it? The new law requires women seeking abortion to speak to the doctor, then wait 72 hours, then get counseled at an anti-choice propaganda station called a “crisis pregnancy center,” only after which would she be allowed to obtain an abortion. This law received quite a bit of attention for overt misogyny inherent in the implication that women are too stupid to be aware of what they’re asking for when they seek abortion, or that women are so ignorant and incurious that they can’t be expected to have considered anti-choice arguments unless forced. But it’s looking like this law may do more than that, and may actually make abortion impossible to get in South Dakota.
This works in two ways. Right away, it was clear that the 72-hour waiting period was an attempt to force the sole abortion provider in the state, a Planned Parenthood in Sioux Falls, to drop the service. The doctor that performs abortions flies in to provide the service, and this requirement is obviously intended to push out any doctor who doesn’t work full time at the clinic by making the travel requirements onerous.
The “counseling” requirement seemed more condescending than truly burdensome at first, though it is true that many women seeking abortion really don’t have the flexible schedule to work in a few hours to be hectored by anti-choicers before obtaining their abortion, which pushes this requirement from being irritating and sexist to being truly an obstacle. But recent news indicates that something more devious is likely going on. As Robin Marty reported last week, not a single crisis pregnancy center has agreed to counsel patients seeking abortion so that those patients can fill their requirements to get their abortions. Not even the centers that lobbied to get the requirement pushed through. Without centers willing to say they saw the patients seeking abortion, patients could be caught in a red tape nightmare that makes getting abortions impossible.\