Why Kennedy Broke

I have a piece at Democracy explaining why Kennedy finally agreed to put some teeth into Casey:

Many state legislatures got the message and passed an increasing array of regulations, the most insidious of which were targeted regulations of abortion providers (TRAP). TRAP laws resembled medical regulations, but their real purpose, in singling out abortion clinics despite the relative safety of the procedure, was to create burdens for these clinics, making it difficult or even impossible for them to operate. Texas HB2, an issue of contention in Hellerstedt, is a classic example. Texas placed requirements on facilities and doctors that would have closed more than half of the states’ already relatively small number of clinics, regardless of actual safety concerns.

It was this sort of practice that almost certainly pushed Kennedy back toward the liberal faction of the Court. Facing a brutal interrogation at oral argument, the medical justifications offered by Texas Solicitor General Scott Keller were almost farcically thin. It’s telling that the dissenting opinions in Hellerstedt focused primarily on procedural questions, and offered only cursory and half-hearted attempts at defending the sham justifications offered by Texas in support of its statute. The Texas regulations are not about protecting women’s health. They’re about trying to restrict, and eventually eliminate, abortion access.

And unlike in Carhart II, not only were the justifications weak, the effects were broad-ranging. Nobody with any commitment to reproductive rights could overlook a statute that shut down large numbers of clinics based on alleged medical justifications that (as Justice Breyer’s opinion showed in painstaking detail) were an insult to citizens’ intelligence. If Kennedy thought liberals were being untrue to Casey during its first decade, it was now being undermined by conservatives. Republican legislators were in fact using Casey to eliminate the rights Casey sought to protect, and it’s not surprising that Kennedy refused to go along.

Plenty of objections can be launched at Casey from both the left and right, and rightfully so. But it’s clear that Kennedy takes the compromises in this decision very seriously. It’s not surprising that state legislatures took his previous opinion as a green light to attack abortion rights, but it’s also not surprising that the pendulum is now swinging back. By demanding that state legislatures provide real medical justifications for regulations that substantially restrict abortion access, the Court has restored needed teeth to Roe. Kennedy’s past deference to anti-abortion interests has now turned to skepticism, and, for supporters of reproductive rights, this is excellent news indeed.

More Hellerstedt commentary from Lithwick, Filipovic, Greenhouse, and Carmon. Emily Crockett explains why it will be difficult for some of the clinics to re-open, which is one reason to reject Alito’s longstanding efforts to create procedural shields against effective challenges to arbitrary abortion regulations. And it’s worth noting that Donald Trump has been silent.