Tuesday, December 6, 2016
Rewire (Dec. 6, 2016): Can 'Whole Woman's Health' Help Push Back Attacks on Voting Rights? by Jessica Mason Pieklo:
One of the most interesting aspects of Whole Woman's Health v. Hellerstedt was the Supreme Court's willingness to scrutinize Texas's purported justification for health regulations that effectively shut down the majority of abortion clinics in the state. Jessica Mason Pieklo argues that the Court's approach in Whole Woman's Health could serve as helpful precedent to support challenges to racially gerrymandered voting districts. She writes Whole Woman's Health was
an affirmation of the responsibility of the courts to review both data and legislative intent in claims of constitutional violations. On Monday, the U.S. Supreme Court considered again the role courts have in weighing evidence and second-guessing lawmakers—only this time in the context of two cases of racially gerrymandering congressional districts, Bethune-Hill v. Virginia State Board of Elections and McCrory v. North Carolina.
Because legislatures are allowed to gerrymander to maximize the political power of a political party but not to gerrymander based on race, when defending the congressional districts, Paul Clement argued that politics was the motivating factor in drawing the districts. As in Whole Woman's Health, both Justice Breyer and Justice Kagan questioned whether the government's purported reasons were a pretext to justify an unconstitutional motive.