Tuesday, June 28, 2016
I've read commentary by some on the pro-life side who contend that the decision represents only a minor set-back. Charlie Camosy, for example, says it's not the "decisive setback . . . it seems to be." I hope he's right, but I fear he's too optimistic. It's not simply that Justice Breyer and his colleagues decided that the regulations in question didn't do enough to protect women's health to justify the burden they thought the regulations imposed on the abortion right. More troubling is what seems to me the fact that the so-called "undue burden" standard has been racheted up (just as, in my view, "strict scrutiny" was racheted down in the college-admissions case last week). And, even though Justice Kennedy had said for a majority in the partial-birth-abortion case, a decade ago, that the state has an interest in protecting fetal life and respecting the dignity of the unborn child throughout pregnancy, he joined Justice Breyer's opinion which I predict will be read by many as holding that, before viability, the state's only legitimate regulatory interest is protecting the health of women obtaining abortions. We'll see.