Abortion Returns to the Supreme Court: A Preview

Abortion. Just to read the word provokes strong mental images, emotions and opinions. Since the tea party mid-term elections in 2010 swept in some very conservative legislators in states across the country, abortion, after taking a back seat to economic issues, has become a hot button issue again.

But what really brings abortion to national forefront is when the U.S. Supreme Court ("SCOTUS") takes up the issue. Well, this coming term SCOTUS will be hearing two cases with the abortion issue at the center of the case.

One case surrounds the fraught issue of abortion clinic protesters. Massachusetts passed a law making it a crime for anyone other than clinic employees to "enter or remain on a public way or sidewalk" within thirty-five feet of the entrance, exit, or driveway of a "reproductive health care facility." This essentially creates what is a 35-foot "buffer zone" (get out your bullhorns, protesters!).

From the point of view of clinic protesters, this violates their First Amendment rights because it is restricting them from being able to fully express their anti-abortion views, while clinic employees are able to speak freely in the "buffer zone." (The Supreme Court has longed ruled that laws violate the First Amendment if they regulate speech based on the substance or viewpoint of the speech/speaker).

Now, in 2000, SCOTUS upheld a Colorado law making it illegal for a protester, who was there to "counsel," "educate" or, frankly, yell something like "you're about to kill a baby," to get within eight feet of anyone who was within 100 feet of an abortion clinic. In that case, the Court decided by a 6-3 vote that the Colorado law was not violative of the First Amendment because it was not regulating speech based on the content of the speech. (This is obviously a debatable point).

So, the rub for the Massachusetts case is this: Justice Kennedy, who is now the "swing vote" in the tough 5-4 cases, was one of the dissenters in the Colorado case (he would have ruled that the Colorado law violated the First Amendment). The Court has gotten more conservative since the 2000 Colorado case. The upshot, then, is that Massachusetts is going to have a tough time gathering five votes from the justices supporting its position that the law is not stepping on the free speech rights of the clinic protesters. Prediction: the Massachusetts law will likely be struck down because Justice Kennedy will provide the fifth vote (to go along with Justices Scalia, Thomas, Alito and Chief Justice Roberts).

The second abortion case SCOTUS will be taking up involves RU-486, or "medical abortions" (as opposed to surgical abortions). RU-486 is a prescription drug that is taken in two doses: the first dose is taken at a health care facility, and, two days later, the patient takes the second dose at home. RU-486 is used for early term pregnancies and roughly 90 percent of all abortions take place in the first trimester (which makes the fight over partial-birth abortion rather inane as a practical matter, though it does bring up interesting moral issues).

But the way, RU-486 is now commonly prescribed (as described above) and is actually "off-label" -- the FDA prescribes a higher first dosage of RU-486 (600 mgs) when most health providers have found that 200 mgs is more appropriate. Second, the FDA also requires that the second dose also be taken at a health care facility (this is the when the patient actually expels the fetus). As many of us know, doctors prescribe drugs off-label on a routine basis (e.g., SSRIs are used to treat a myriad of conditions not otherwise "indicated"). The medical community has also found that the off-label use of RU-486 can be safely utilized up to nine weeks (63 days) into the pregnancy, as opposed to the FDA "on-label" limit of 49 days.

So, how did we get a constitutional law abortion case out of all this? The real reason is this: anti-abortion folks want less abortions, so attacking a common abortion procedure like RU-486 is one way to accomplish their ideological and moral goal. And when a Illinois-based anti-abortion advocacy group presented some model legislation to Oklahoma legislators that required medical providers to follow the FDA prescribed process and discontinue "off-label" prescriptions, the GOP-dominated legislative bodies passed it. Wah-lah, a small, but significant victory for those who dislike abortion.

But, inevitably, the law was challenged by abortion clinics arguing the law would effectively end medical abortions in Oklahoma -- surgical abortions are, for obvious reasons, more risky, invasive and expensive. Both the Oklahoma state trial court judge and the Oklahoma Supreme Court ruled that the off-label law violated the right to abortion (it was an "undue burden" on a woman's right to abortion under Casey).

There is some procedural messiness, legally speaking, to the RU-486 case that would take us far afield and into legal arcana (snooze), that may prevent the case from being heard in the near future. However, given that at least four justices decided to hear the case -- at least four justices need to decide to vote hear any given case -- this tells SCOTUS watchers that this case has caught the attention of a significant portion of the Court.

What will happen if/when the Court hears the case? Let's circle back to Justice Kennedy -- who, for a variety of reasons, I think is the worst justice on the current court. While he clearly is uncomfortable with partial-birth abortion -- for example, Justice Kennedy, was the fifth vote to uphold the federal "partial-birth" abortion ban in 2007 -- he is not as strident on the issue as, say, Justice Scalia; Kennedy did vote to uphold Roe v. Wade in 1992 in the Casey case. My guess: SCOTUS finds the RU-486 law unconstitutional as an undue burden on woman's right to abortion.

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