JOHN BRUMMETT: Viable law of the land

The U.S. Supreme Court has now produced a trilogy on abortion.

There might be one more entry yet to write. That probably depends on whether Hillary Clinton or Donald Trump makes the next bevy of federal judgeship nominations.

In the first installment, Roe v. Wade in 1973, the court said that a constitutional right to privacy exists implicitly and protects a woman's right to choose an abortion until a fetus achieves "viability." That word, "viability," came to mean the final trimester specifically and to mean generally the ability of a fetus to be sustained outside the womb.

In the Planned Parenthood v. Casey appeal from Pennsylvania in 1992, a newly Republicanized court, in a highly fractured and convoluted set of determinations, said that, yes, Roe established properly a right to choose abortion up to a point. But it provided that, actually, a state may impose laws restricting the application of that right so long as those restrictions don't place an "undue burden" on the woman's free choice.

Specifically, the court said that, sure, Pennsylvania could require a 24-hour waiting period and informed consent--the premise being that there is nothing "undue" about waiting a day and signing a document attesting that you know and understand what you are doing.

Then on this very Monday came the new installment to produce the trilogy. The Supreme Court ruled 5-to-3, with Justice Anthony Kennedy again sliding decisively to the left on a socio-religious issue, that Texas could not assert a public health and safety interest in requiring abortion clinics to meet hospital outpatient standards and mandating that abortion doctors hold hospital admitting privileges.

The court ruled that the real effect of the Texas law was to shut down abortion clinics and limit the ability of Texas women to obtain abortions.

The public health benefit of the new requirements was, at best, dubious, considering that abortions are statistically safer than childbirth--at least in terms of the latest mortality rates. A higher percentage of women die during childbirth than during abortions.

But even if valid, the court said, the restrictions ran afoul of the "undue burden" standard as invoked by Casey. The court said that, whatever health benefits might be realized, they came up short when weighed against the law's practical and considerable restriction on a woman's constitutional right.

The Texas law put so many clinics out of business that women could not logistically get abortions. And that was the real purpose of Texas politicians who only pretended that their aims were health and safety.

When Arkansas Republicans such as Attorney General Leslie Rutledge and U.S. Sen. Tom Cotton issue statements lamenting that the court ruled against a state's right to protect a woman's health and safety, they aren't shooting straight.

They should just say it--that what they lament is that the Supreme Court stopped Texas from doing the Lord's work to pretty nearly end abortion in vast portions of a vast state.

But they can't say that because anti-abortionists could not hope to succeed under Casey's "undue burden" standard unless they denied the "undue burden" that was, of course, their real and zealous intent.

Several other states, including our little one, have versions of the Texas law. In Arkansas, the Republican Legislature required in 2015 that an abortion doctor possess hospital admitting privileges.

The law was enjoined in federal district court in Little Rock and the appeal is pending before the U.S. 8th Circuit Court of Appeals. It's moot now, a loser, invalid, even if Rutledge's fear of her right-wing base won't permit her to admit it and drop the case.

If there is another potential frontier--absent a simple repeal of Roe v. Wade--it has to do with the angle that the Jason Rapert types have been pursuing.

That's the one that embraces the "viability" issue to argue that evolving medical learning shows that viability actually occurs much earlier than the final trimester--perhaps when, as provided in Rapert's law that got struck down, a thump of a heartbeat can be detected in the very early weeks of pregnancy.

They're getting nowhere with that. But a Republican presidency of eight years, with changes in federal judgeships at the district, appellate and supreme levels, conceivably could lead to some advancement of the viability date on the premise that it did not impose an undue burden.

But for now, and as long as the oft-conservative Ronald Reagan nominee named Anthony Kennedy slides left on the issue, abortion remains not only the nominal law of the land, but the actual and enforced law of the land.

A Hillary Clinton presidency locks it down tight.

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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 06/30/2016

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