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 In that 1992 challenge, the landmark Roe v. Wade ruling legalizing
abortion survived, but the Supreme Court allowed for such state
regulations as waiting periods.
The decision was written by Justices Sandra Day O'Connor and David
Souter, who have retired, and Justice Anthony Kennedy.
Kennedy is seen as pivotal in the current case which picks up, in a
sense, where the earlier case, Planned Parenthood v. Casey, left
off.
This time, the court is deciding if Texas has created an undue
burden for women by imposing stiff regulations on abortion clinics
and doctors. Critics say the rules are a backdoor means to restrict
access to abortion, known as TRAP laws.
More than half of Texas' clinics have closed, leaving fewer than 20,
advocates say, to serve the state of 27 million people.
Hardest hit have been rural, poor women for whom distance and cost
have put abortions out of reach, they say.
 Supporters of the laws say they protect women's health, however. The
regulations require clinics to upgrade to hospital standards and
doctors performing abortions to have formal agreements to admit
patients to local hospitals. [nL2N1831BR]
Kolbert, who heads the Athena Center for Leadership Studies at New
York's Barnard College, talked with the Thomson Reuters Foundation
about the Supreme Court and abortion rights.
She co-founded the Center for Reproductive Law and Policy, which is
representing Whole Women's Health, the chain of clinics challenging
the Texas regulations.
THOMSON REUTERS FOUNDATION: It seems the issues being addressed in
the Texas case come out of the Casey case, that the regulations are
an undue burden.
KOLBERT: The main issue in the case is how the undue burden standard
will be interpreted going forward.
The whole question comes down to Justice Kennedy and how he sees
that standard, and he frankly is much more in the middle.
Does he come back to what he articulated in Casey, or is he pushed a
little bit to the right with the influence of the other justices?
For me, the biggest concern is Justice O'Connor, who he clearly
listened to, is no longer on the court.
TRF: What do you think in essence underlies the abortion issue?
KOLBERT: It's an issue that ties together the coalitions on the
right, the fundamentalists, the Catholics, the people who basically
are business conservatives.
It's about power. It's about equality. There's a lot of pushback in
America still about giving women the ability to go beyond what they
are, their life as a wife and mother, which is the culturally
dominant view.
TRF: TRAP laws are often hard to explain because they seem so
benign.
KOLBERT: That's a strategy. Those who are writing these restrictions
are looking for things that sound reasonable but in practice are
incredibly problematic for women, particularly those who have less
political power. So young women and poor women are the first that
are going to be affected negatively.
If you look at every restriction that's been introduced since 1973,
they are all under the guise of reasonableness.
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TRF: Texas is the case being tested. Is it safe to say there are
similar situations in other states?
KOLBERT: All over the country, yes. Frankly, if this is upheld the
same statute will be enacted in 25 states within three years. That's
what makes it so dangerous.
TRF: What are the possibilities of what the Supreme Court could do?
KOLBERT: Remember the court has got only eight justices right now,
so the option is really one of three.
We win five to three, which means that we have (Justice Elena) Kagan,
(Justice Stephen) Breyer, (Justice Sonia) Sotomayor, (Justice Ruth)
Ginsberg and Kennedy.... Kennedy wrote Casey, so that's a reasonable
assumption.
The second possibility is that the court would not make a decision
right now and would send the case back for taking of additional
evidence ... which is what I think of as looking for an out.
They could remand the case for a determination of whether or not
there are a sufficient number of clinics within the state to handle
the excess capacity of women needing abortions that would happen
when you close so many clinics.
So we could win, there could be an 'out' or we could lose. If the
court divided four-four..., then the lower court decision would be
upheld.
That would be interpreted as a major win for the anti-abortion
groups, and we would see laws like this in every state in the
country.
TRF: If you had to put your money on any of those three options,
which one do you see more likely?
KOLBERT: I certainly hope that we can keep Justice Kennedy. If not,
then I think they'll send it back for more evidence.
TRF: What's it like to argue a case before the Supreme Court?
KOLBERT: It's pretty awesome, it's scary. For me though it was all
about the women we were representing. It's the doctors and the
clinics, the providers who do the hard work, who meet with women
facing unintended pregnancies every single day.
It was being able to be a spokesperson for them and to explain their
plight and explain what they're going through that was the most
gratifying part of the job.
(Reporting by Ellen Wulfhorst, Editing by Ros Russell; Please credit
the Thomson Reuters Foundation, the charitable arm of Thomson
Reuters, that covers humanitarian news, women's rights, trafficking,
property rights and climate change. Visit http://news.trust.org)
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