[This is done while abortion rights are threatened nationally especially since that was a motivating factor for some in supporting Trump. This recently corrupted international relations by forcing watering down a measure to deal with war crimes because the resolution was deemed too pro-abortion.]
As here, the states at times go beyond the federal Constitution. For instance, some have held the right to choose covers not discriminating in state funding. This has not been the policy, even when necessary for women's health, in the U.S. Supreme Court. Maher v. Roe started the ball running there and had this passage:
Three justices in that opinion also signed on to Roe v. Wade, but even Justice Blackmun at least once used "undue burden," which especially for a term applying substantive due process is not necessarily a bad thing:
The Slate article on today's ruling (the court website shows that it also has video) references a 1990s Montana ruling that is also worth a reference. First, I saw one scholar on Twitter reference the Supreme Court opinion (6-3) as important as a case where abortion restrictions were upheld. It blocked physician assistants (after allowing them for years) under the direct control of physicians from performing abortions, which ultimately affected one person here. Unlike the U.S. Supreme Court, the Montana Supreme Court found bad faith in the passage of the law, showing it selectively targeted abortion rights. Not only did the opinion provide a strong defense of privacy under the state constitution (it also protected same sex rights before Lawrence v. Texas), but warned against sectarian restrictions in that field.* [Case is interesting enough to expand a bit.]
The Kansas Supreme Court here in a 6-1 ruling relied on a state constitutional right to "natural rights" to note that this was more than a substantive due process case. Roe v. Wade was though it also was seen in time as an equal protection matter with other things arising at times too. Early on, there was some reliance on the Ninth Amendment and Planned Parenthood v. Casey also referenced that to remind that the "liberty" protected by the Constitution is not merely reliant on explicit enumerated rights such as free speech. A look at the background of the Ninth Amendment would suggest there was some natural law (human rights based on their nature, referenced by the Declaration of Independence) implications there. But, in some state constitutions it's more explicit.
The dissent had some an anti-abortion conservative tone while one judge wanted to use the undue burden test. Like the Montana Supreme Court, the majority here (per curiam) fleshed out the theory and history behind the rights at issue here. One good touch is to reject an original understanding argument by noting that 19th Century abortion provisions were not carefully crafted and anyway women were not treated as equal citizens. But, the opinion did not avoid history. Like many opinions with a liberal result, there is a lot of history here that argues that a correct respect of original understanding does not merely bring with it ideological conservative results. The corrective involving women here -- and even today women don't have an equal role in public life -- shows that it could be done while factoring in other things including lessons learned.
Note the Montana constitutional provisions considered in the case here was a result of a post-Griswold state constitution. State constitutions are ultimately more open to amendment or even replacement than the federal version. It is unclear that the Founders really thought the Constitution would stand for two hundred plus years, with somewhat limited amendment, but overall it being so much harder to change factors in here. This and their more limited reach (specific states) makes judicial review somewhat less controversial in that context. Prudentially, I am somewhat sympathetic with using "undue burden" as the national floor though agree it has been applied in a problematic way. As Justice Stevens noted at the time, the results of usage of any test would only be seen in practice.
(As long as there are no absolutes, and it will not be here, there will be some balancing. Part of the problem is a matter of what will be allowed there as "compelling." Or, the full nature of the right in general. Selectively funding Medicaid here is a blatant case, which fell under the old regime, where a sectarian promotion of one view of "life" led to serious burdens on the rights in question. Merely using "strict scrutiny," therefore will not solve everything.)
The protection of abortion rights in various states like this makes me opposed to total horror predictions on the reach of Roberts Court treatment of abortion rights. I do not foresee Congress passing a national law that across the board burdens abortion rights, superseding these protections (at issue here was a restriction of a second trimester method used in most cases). But, it will burden women in certain states, especially as applied in certain areas of regulations. We already saw the Supreme Court make it harder for even liberal states to regulate "crisis pregnancy centers" on shoddy First Amendment grounds. And, like in Hawaii in the 1990s regarding same sex marriage, wins are often easier to defeat in state battles.
You take the wins you can though.
---
* The SCOTUS dissent was not part of the Casey plurality -- Stevens dissented with new justices RBG and Breyer. The majority rejected concerns of the law being not neutral, noting long time requirements that a physician perform abortions. But, as Blackmun noted separately in Casey regarding fulfilling informed consent requirements, that can be taken too far. And, long time practice here was to allow assistants under supervision to perform abortions; after the new law, they still could perform births.
The state court opinion's use of stricter scrutiny gave less leeway for this sort of thing and more firmly opposed selectively targeting abortion, including for alleged neutral medical reasons. Strict scrutiny was opposed by some justices since it seemed like the justices had to be a sort of medical board, examining the soundness of various medical regulations. But, as is the case for free exercise of religion, general laws should be required here. In part quoting Dworkin's Life's Dominion and other works, the state opinion here shows how there is an overlap here, personal conscientious beliefs at issue. This was referenced in Casey, but not to this breadth.
And, the state opinion emphasizes this. Yes, the state is allowed to regulate medicine, but it must be done in a neutral way, not a way that selectively singles out matters left to personal choice. The state opinion (so much a concurrence did not sign on to all of it) was forceful here:
“Section 1 of the Kansas Constitution Bill of Rights provides: ‘All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,'” the opinion states. “We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.’”As we wait to see how the Supreme Court post-Kennedy will handle things, the news in the states (beyond New York) isn't all bad. As noted here with links to other state opinions (put at 10 in the first link), multiple states have held their state constitutions protect rights that include abortion choices.
As here, the states at times go beyond the federal Constitution. For instance, some have held the right to choose covers not discriminating in state funding. This has not been the policy, even when necessary for women's health, in the U.S. Supreme Court. Maher v. Roe started the ball running there and had this passage:
Roe did not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.That's a cheap shot at any rate. Free speech rights aren't "unqualified" either. "Seemed to think" is one of those red flags; no they didn't. You can read the lower court opinion here. Notable here is the use of a form of "undue burden," which later became the rule, one weaker than strict scrutiny. Why wouldn't a Medicaid program that selectively denies coverage for abortions (again, even if a pregnancy more than usual even negatively burdens the pregnant person's health) be "unduly burdensome interference"? In First Amendment contexts, this would come off as an unconstitutional condition and the dissent there said so.
Three justices in that opinion also signed on to Roe v. Wade, but even Justice Blackmun at least once used "undue burden," which especially for a term applying substantive due process is not necessarily a bad thing:
"We do not accept appellees' assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a "parental veto," require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent."And, again pre-Casey, Justice Stevens repeatedly spoke of "undue" interference and the like as well as quoting the lower court referencing "undue burden" in a parental consent case. Justice O'Connor (with cites) had some grounds to appeal to an "undue burden" standard though using it to weaken the test. When it eventually became the rule of the Court, she used a stronger version, if one that still invited a lot more regulation. Such was the basic goal here and will affect application of the test, even if in theory it need not be that way. The Kansas Supreme Court and others favored the old strict scrutiny rule.
The Slate article on today's ruling (the court website shows that it also has video) references a 1990s Montana ruling that is also worth a reference. First, I saw one scholar on Twitter reference the Supreme Court opinion (6-3) as important as a case where abortion restrictions were upheld. It blocked physician assistants (after allowing them for years) under the direct control of physicians from performing abortions, which ultimately affected one person here. Unlike the U.S. Supreme Court, the Montana Supreme Court found bad faith in the passage of the law, showing it selectively targeted abortion rights. Not only did the opinion provide a strong defense of privacy under the state constitution (it also protected same sex rights before Lawrence v. Texas), but warned against sectarian restrictions in that field.* [Case is interesting enough to expand a bit.]
The Kansas Supreme Court here in a 6-1 ruling relied on a state constitutional right to "natural rights" to note that this was more than a substantive due process case. Roe v. Wade was though it also was seen in time as an equal protection matter with other things arising at times too. Early on, there was some reliance on the Ninth Amendment and Planned Parenthood v. Casey also referenced that to remind that the "liberty" protected by the Constitution is not merely reliant on explicit enumerated rights such as free speech. A look at the background of the Ninth Amendment would suggest there was some natural law (human rights based on their nature, referenced by the Declaration of Independence) implications there. But, in some state constitutions it's more explicit.
The dissent had some an anti-abortion conservative tone while one judge wanted to use the undue burden test. Like the Montana Supreme Court, the majority here (per curiam) fleshed out the theory and history behind the rights at issue here. One good touch is to reject an original understanding argument by noting that 19th Century abortion provisions were not carefully crafted and anyway women were not treated as equal citizens. But, the opinion did not avoid history. Like many opinions with a liberal result, there is a lot of history here that argues that a correct respect of original understanding does not merely bring with it ideological conservative results. The corrective involving women here -- and even today women don't have an equal role in public life -- shows that it could be done while factoring in other things including lessons learned.
Note the Montana constitutional provisions considered in the case here was a result of a post-Griswold state constitution. State constitutions are ultimately more open to amendment or even replacement than the federal version. It is unclear that the Founders really thought the Constitution would stand for two hundred plus years, with somewhat limited amendment, but overall it being so much harder to change factors in here. This and their more limited reach (specific states) makes judicial review somewhat less controversial in that context. Prudentially, I am somewhat sympathetic with using "undue burden" as the national floor though agree it has been applied in a problematic way. As Justice Stevens noted at the time, the results of usage of any test would only be seen in practice.
(As long as there are no absolutes, and it will not be here, there will be some balancing. Part of the problem is a matter of what will be allowed there as "compelling." Or, the full nature of the right in general. Selectively funding Medicaid here is a blatant case, which fell under the old regime, where a sectarian promotion of one view of "life" led to serious burdens on the rights in question. Merely using "strict scrutiny," therefore will not solve everything.)
The protection of abortion rights in various states like this makes me opposed to total horror predictions on the reach of Roberts Court treatment of abortion rights. I do not foresee Congress passing a national law that across the board burdens abortion rights, superseding these protections (at issue here was a restriction of a second trimester method used in most cases). But, it will burden women in certain states, especially as applied in certain areas of regulations. We already saw the Supreme Court make it harder for even liberal states to regulate "crisis pregnancy centers" on shoddy First Amendment grounds. And, like in Hawaii in the 1990s regarding same sex marriage, wins are often easier to defeat in state battles.
You take the wins you can though.
---
* The SCOTUS dissent was not part of the Casey plurality -- Stevens dissented with new justices RBG and Breyer. The majority rejected concerns of the law being not neutral, noting long time requirements that a physician perform abortions. But, as Blackmun noted separately in Casey regarding fulfilling informed consent requirements, that can be taken too far. And, long time practice here was to allow assistants under supervision to perform abortions; after the new law, they still could perform births.
Although this is not apparent on the face of the statute, the parties agree that because Cahill is the only physician assistant who performs abortions in the State of Montana, she is the only person affected by the ban. Furthermore, the legislative hearings preceding the enactment of the statute contain numerous references to Cahill by name, and the injunction against enforcement of this provision of the statute pending the appeal applies only to Cahill.As Stevens noted, taking everything into consideration, this looked like a TRAP (targeted regulations of abortion providers) law. This is particularly problematic in a place like Montana, where you have isolated patients that would benefit from such an assistant. The person I referenced on Twitter noted that such a requirement also would prevent more private usage of abortion pills. Likewise, limits on telemedicine. Such methods can help lessen the problems of waiting periods and so forth.
The state court opinion's use of stricter scrutiny gave less leeway for this sort of thing and more firmly opposed selectively targeting abortion, including for alleged neutral medical reasons. Strict scrutiny was opposed by some justices since it seemed like the justices had to be a sort of medical board, examining the soundness of various medical regulations. But, as is the case for free exercise of religion, general laws should be required here. In part quoting Dworkin's Life's Dominion and other works, the state opinion here shows how there is an overlap here, personal conscientious beliefs at issue. This was referenced in Casey, but not to this breadth.
And, the state opinion emphasizes this. Yes, the state is allowed to regulate medicine, but it must be done in a neutral way, not a way that selectively singles out matters left to personal choice. The state opinion (so much a concurrence did not sign on to all of it) was forceful here:
Worse, when, as in the case at bar, the legislature thrusts itself into this protected zone of individual privacy under the guide of protecting the patient's health, but, in reality, does so because of prevailing political ideology and the unrelenting pressure from individuals and organizations promoting their own beliefs and values, then the state's infringement of personal autonomy is not only constitutionally impermissible, it is, as well, intellectually and morally indefensible.The Supreme Court even under the new regime drew a line in the sand there a few years ago. It will remain to be seen what the new post-Kennedy Court will do. Again, the state ruling from 1999 had it right:
legal standards for medical practice and procedure cannot be based on political ideology, but, rather, must be grounded in the methods and procedures of science and in the collective professional judgment, knowledge and experience of the medical community acting through the states' medical examining and licensing authorities.This might be a bit much but the sentiment is right.
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