Friday, March 24, 2017
Business Insider (March 21, 2017): If you care about the future of abortion rights, now is a good time to worry, by Jessie B. Hill:
Although there is no immediate threat to Roe v. Wade, Professor Jessie Hill discusses why supporters of abortion rights should be worried. She writes:
But the real danger may be not so much that things will radically change – it’s that they’ll remain the same. From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the landscape looks about as treacherous as it ever has.
Despite the Supreme Court's decision in Whole Woman's Health v. Hellerstedt last term finding two provisions of a Texas statute unconstitutional, states continue to adopt new restrictions on abortion. In 2016, 18 states adopted 50 new pieces of anti-abortion legislation. While the balancing test applied in Whole Woman's Health the Court allowed the court to take into account that there was no evidence to support the state's claim that it enacted the provisions to protect women's health in determining the benefits and burdens of the law, the test still gives judges a lot of discretion. Prof. Hill warns that "A legal test that requires balancing benefits and burdens leaves a lot of room for a judge to place a thumb on the scale." Also of concern is the deference that Trump's Supreme Court nominee Judge Gorsuch shows to religious rights claims as we increasingly see expansion of these claims to undermine laws that protect women and LGBTI individuals from discrimination.
Finally, Professor Hill notes that while the five judges majority in Whole Woman's Health remains on the Court, "the real turning point will likely come if and when Trump gets to make second nomination the Supreme Court."