What is the Supreme Court’s overarching thinking on the constitutionality of pro-life legislation? Does it even exist, or is it more of a tendency which ebbs and flows over time? It’s a fair question given the Court’s maintenance of Roe and Casey alongside limiting decisions like Webster and Gonzalez v. Carhart.
Teresa S. Collett, writing for Public Discourse, attempts an answer and argues that incremental steps like fetal pain laws are the surest way to clear pro-life legislation with the court system. She then asserts, rather intriguingly, that the justices of the Supreme Court are now ready and willing to take these opportunities:
I believe a majority of the Court, including Justice Kennedy, is looking for an exit strategy from the cultural combat surrounding abortion. In Gonzales v. Carhart, Justice Kennedy echoed the longstanding critique that Roe had transformed the Supreme Court into “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” And earlier this year Justice Ginsburg, the most outspoken defender of abortion rights on the Court, is reported to have said that Roe was mistimed, moving too fast in its usurpation of the political dialogue over abortion that was occurring in the states in the 1970s.
Even if a majority of the Court wants to return the question of abortion to the normal legislative process, some justices are reluctant to be seen as abandoning the field entirely. It is important to remember that Justice Kennedy joined in the plurality opinion in Planned Parenthood v. Casey characterizing access to abortion as necessary to “[t]he ability of women to participate equally in the economic and social life of the Nation.” Upholding Pain-Capable Child Protection Acts allows the Court to make incremental progress toward restoring full state authority over the question of abortion, while retaining control, for now, over restrictions dealing with ninety percent of the abortions in this country.