Supreme Court watchers are wondering when the high court will feel compelled to weigh in on the patchwork of rulings being produced by state laws that chip away at abortion access. Those laws include banning abortion after 20 weeks, requiring clinic doctors to have hospital admitting privileges, and burdensome facility requirements. Here's
Paige Winfield Cunningham at Politico:
The result is growing inconsistency nationally on the central legal argument of whether a state has created an “undue burden” for a woman seeking an abortion. That concept has guided the Supreme Court since the 1992 Planned Parenthood v. Casey decision, which upheld the right to abortion but granted states the power to regulate the procedure as long as excessive barriers — an undue burden — weren’t created.
So far the Supreme Court has not been particularly eager to jump into the debate, but conflicting decisions on the same law from two different appellate courts could change all that.
Technically, that hasn’t happened yet, but the divergent decisions by multiple federal district and appeals courts have made the lack of consensus abundantly clear.
The law requiring doctors to have hospital admitting privileges, for instance, has already produced diverging outcomes within the same circuit.
The U.S. Court of Appeals for the 5th Circuit ruled one of those laws in Texas constitutional — but a different panel of judges on the very same circuit temporarily blocked a similar law in Mississippi. To the north, the 7th Circuit has temporarily blocked Wisconsin’s admitting privileges law while the case winds through lower courts.
But the questions that analysts really feel the high court needs to settle is what constitutes an undue burden.
“I think the fate of the undue burden standard is really being debated and discussed in the courts right before our eyes and seems ripe for a Supreme Court review,” said Gretchen Borchelt, state policy director for the National Women’s Law Center.
It's a question that's already beginning to be settled by the lower courts, but it's a moving target.
Most states in which the admitting privileges laws have been blocked, including Alabama, Oklahoma and Louisiana, have five or fewer abortion clinics in operation. Mississippi, North Dakota, South Dakota and Wyoming each just have one open clinic.
Meanwhile, abortions are at their lowest level since
Roe v. Wade legalized it in 1973.