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Sandra Day O'Connor, the first woman to sit on the Supreme Court, announced Tuesday that she would retire from public life after a diagnosis of dementia.
O'Connor's announcement coincides with a turning point for the Supreme Court. Some of her most influential views during her 25 years at the Court relate to the right to abortion. A moderate on a court that moved right during his tenure, she cast a crucial vote to support Roe v. Wade in Parenting Planning v. Caseyand she is often seen today as a defender of the right to abortion.
Now, with Judge Brett Kavanaugh's confirmation, the protections for the right to abortion roe seem more at risk than they have been for decades. And O'Connor's legacy as a protector of the right to abortion by pivotal vote will be confronted with a monumental test.
Appointed by President Reagan, O'Connor joined the Court in 1981, eight years later roIt was decided. But she was a co-author, and the main philosophical force behind, Parenting Planning v. Casey, an abortion decision almost equally influential. Build but also revise roethis case established the standard for determining the constitutionality of abortion laws that are still in effect today: these laws are not valid if they impose an "undue burden" on a woman seeking an abortion.
In many ways, Casey Preparing the ground for debates on abortion before the Supreme Court today, Vox told Mary Ziegler, a law professor at Florida State University, specializing in the history of the debate over the law. 39; abortion. Although the decision confirmed the core of roe, the excessive burden test it has established is vague enough that the current Court can use it to authorize a range of abortion restrictions, effectively eliminating the right to terminate a pregnancy without explicitly doing so . In other words, O'Connor's famous abortion rights defense could also have contained the germs of roeThe destruction.
Parenting Planning v. Casey created the legal environment of abortion today
In 1973, Roe v. Wade established a framework for the evaluation of abortion laws by quarter – if a law prohibited abortion before the third trimester, it was unconstitutional. But of course, the abortion controversy has not stopped and anti-abortion groups and lawmakers have embarked on the strategy they still use today: to impose various restrictions on abortion without trying to ban it outright. In Pennsylvania, for example, lawmakers passed, and Governor Robert Casey Sr., a 1989 law imposing a 24-hour waiting period for abortions, informed consent requirements, and parental consent for minors can benefit from the procedure. As Nina Martin of ProPublica notes, it also required married women to inform their spouse if they decided to terminate their pregnancy.
Planned Parenthood and other abortion providers have challenged the law and it was brought to the Supreme Court in 1992, at a time that was politically similar to that of 2018. Clarence Thomas had just been released. To be confirmed, in a process very similar to that of Kavanaugh. As Martin writes, "Republican appointees now clearly hold the fate of the right to abortion in their hands."
In Casey, "People on both sides were waiting for a staggering decision roeand maybe even a decision recognizing the right to life, "said Ziegler.
Instead, what they had was complicated. In some ways, Casey weakened roe by replacing the quarterly framework with the overbearing standard, without clearly indicating what such a charge was, beyond the removal of the part of the Pennsylvania Spousal Notification Act. In their majority opinion, O'Connor and judges David Souter and Anthony Kennedy also referred to arguments that the Conservatives would later use to restrict the right to abortion, such as the possibility that women may regret abortions.
But the opinion has also advanced the argument that the right to abortion is an issue of equal rights for women. This argument, based on the 14th amendment and its guarantee of equal protection of the law, is being examined by many people – including Judge Ruth Bader Ginsburg. – to be stronger than the argument of the right to privacy which constitutes the basis of roe.
Casey "In many ways, not only changed the law, but also gave both parties a roadmap indicating what they would like to do in the future," Ziegler said. "Pro-choice groups would develop this idea of women's equality and its link to fertility control, and abortion opponents wanted to use the undue burden test to reduce the right to sex. ;abortion."
Casey could make Roe harder to spill but easier to empty
the Casey decision could make it more difficult to overthrow roe, both politically and constitutionally, Ziegler said. Politically,Casey concluded a good deal much better about what people think of abortion "than roe she explained. In opinion polls, most people support the right to an abortion and the government's ability to regulate it. Allowing states to restrict abortion as long as they do not impose an excessive burden is a compromise that satisfies many voters, and its existence makes it particularly difficult to abolish the right to abortion.
In terms of constitutional law, Casey also serves to reaffirm the fundamental right to an established abortion in roe. Kavanaugh called Casey "Back on previous" in his confirmation hearings. While advocates for abortion rights have not put much emphasis on this response, noting that the Supreme Court can overturn the precedent at any time, it's true that Casey adds a layer of legitimacy to roe this could make it harder for the court to remove the right to an abortion.
But "if the court is not interested in overturning overtly roe, Casey Mr Ziegler said: "It's an ideal way to actually reduce the right to abortion without admitting that's what you're doing," Ziegler said. "Because the standard of excessive load is ambiguous".
The Court could simply decide that the abortion restrictions it is subject to are not excessively burdensome, which will allow states to further restrict access to abortion they have not done so yet, without provoking the outcry that has upset roe would be sure to breed.
O'Connor's pragmatic heritage is now under threat
O'Connor was more than a co-author of the opinion of plurality in Casey. His approach to the abortion law is somehow the basis of the decision. In 1983, she was the first Supreme Court justice to propose an excessive burden test for the Abortion Act. City of Akron c. Akron Center for Reproductive Health. This test was somewhat different from the one presented in Caseyand the differences reflect the evolution of O'Connor's attitude towards roe and abortion.
"In some ways, O'Connor was more skeptical roe when roe Ziegler said: "and more aware of some of the virtues of the right to abortion when the right to abortion is likely to disappear".
In general, however, O'Connor tended to take a pragmatic rather than ideological approach to abortion decisions. She was skeptical about the quarter's framework roe because she thought it was "asking the courts to make medical decisions," Ziegler said.
"The roe executive, said O'Connor in his dissent The city of Akron, "Is clearly on a collision course with himself. As the medical risks associated with various abortion procedures decrease, the time when the state can regulate for maternal health reasons is moved further until delivery well said. As medical science is able to better ensure the distinct existence of the fetus, the point of viability is increasingly shifted toward conception. "
Advances in neonatal care have indeed pushed the point of viability earlier and earlier in pregnancy, and advocates of abortion have used this to advocate for a new visit. roe.
When O'Connor addressed abortion cases, "she was interested in fact knowledge and less in abstractions," said Ziegler. She wanted to know how laws would affect real women in their daily lives. In the case of the Pennsylvania law at issue in CaseyFor example, she paid particular attention to how the spousal notification obligation would affect women victims of domestic violence, Ziegler said.
"There are millions of women in this country who regularly suffer physical and psychological abuse from their husbands," wrote O'Connor and his co-authors. Casey. "If these women get pregnant, they could have very good reasons not to inform their husbands of their decision to get an abortion."
O & Connor's attention to the costs and benefits of abortion laws, and abortion itself, shapes the public debate about the procedure to date said Ziegler, who often focuses on issues such as the danger of illegal abortions or the possibility that women will regret the procedure, rather than on the question of whether or not access to it. Abortion is a human right.
O'Connor's pragmatism does not necessarily correspond to the views of advocates on both sides of the abortion debate, Casey was not an unmixed good for both sides. But his approach tends to take into account what Americans think and experience on the issue. Today, while America faces what looks like another time for the Court in 1992, its legacy resonates particularly well.
If the court decides to overturn roe – something that President Trump promised in his election campaign – then, as Ziegler says, "it really would not be O'Connor's court".
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