An interesting article on Women’s E News argues that, once Justice Roberts joins the court, Justice Kennedy will become the most important abortion rights vote – the one that other justices will have to sway. Kennedy has been pro-Roe in recent years, but he was with the 4-5 minority that voted to allow states to ban vaguely-defined “partial birth” abortions, even when they were necessary to preserve a women’s health.
At the end, E News touches briefly – far too briefly – on the most important legal challenge to abortion rights facing the Supreme Court:
Also to be reviewed [by the Court later this year] is the basis upon which women’s advocates may challenge anti-choice laws, an important issue for keeping open the courthouse doors when burdensome restrictions are passed.
I wish they had spent more time discussing this. If the Court decides to apply “the Salerno standard” to abortion cases, it will become ten times harder for pro-choice organizations to fight new abortion bans and restrictions in the courts. Even an obviously unconstitutional abortion ban might remain good law for many years while court cases drag on, enabling pro-lifers to effectively ban abortion in far more cases than they currently can.
This is what Jack Balkin was referring to when he wrote “Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.”
It may be a mistake that so many pro-choicers, when discussing the Supreme Court and abortion, are talking about the future of Roe and Casey. Until Justice Kennedy radically changed his views, or Ginsberg or Stephens unexpectedly retires, Roe is safe – but that doesn’t mean that practical access to abortion is being upheld by the Court. The much more immediate danger is that no one has any idea how Kennedy or Roberts will vote on applying the Salerno standard to abortion cases.