Supreme Court Justice Stephen Breyer sounded the alarm about the court’s conservative majority’s eagerness to overturn decades-old precedent in a dissent to a 5-4 decision where the court reversed a 1979 ruling regarding state sovereignty.
Breyer’s statement was widely interpreted to be a warning about Roe v. Wade, given that he teed up his warning with a reference to a 1992 abortion case that upheld the 1973 landmark decision enshrining the constitutional right to abortion.
“Today’s decision can only cause one to wonder which cases the Court will overrule next,” Breyer said, after quoting the decision 1992 Planned Parenthood v. Casey.
Breyer’s dissent was in a lower-profile case not having to do with abortion, but rather the question of whether a state can face a private lawsuit in another state’s court without its consent. The conservative justices on Monday overturned the 1979 decision in Nevada v. Hall that had allowed such lawsuits. The court’s other liberal justices joined Breyer’s dissent.
Last term, the conservative justices also overturned a longstanding decision allowing public unions to extract fees from non-union members.
Since President Trump was able to solidify an abortion-hostile conservative majority on the courts — by replacing Justice Anthony Kennedy, who was at times sympathetic to abortion rights, with Justice Brett Kavanaugh — states have moved quickly to pass anti-abortion laws that could serve as the test cases to rolling back Roe.
The most recent is a bill signed by Georgia Gov. Brian Kemp (R) last week banning most abortions after a fetus’ heart beat is detected — which is usually around six weeks into a pregnancy. There are other anti-abortion laws already being challenged in court in cases that will soon be at the Supreme Court’s doorstep as well as one from Indiana that the court is already considering whether it should take up.
Writing for the majority Monday in the state sovereignty case, which was called Franchise Tax Board of California v. Hyatt, Justice Clarence Thomas included his own hints that the conservatives were ready to cast certain court precedents aside. The legal term for the posturing towards upholding the Supreme Court’s previous precedent is stare decisis.
“With the historical record and precedent against him, Hyatt defends Hallon the basis of stare decisis,” Thomas wrote, referring to the party in the case that was arguing for the precedent to be upheld.
“But stare decisis is ‘not an inexorable command,’” he continued, “and we have held that it is ‘at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment.’”
(Reporting by Talking Points Memo)
St. Louis Abortion Clinic To Defy Missouri, Refuse To Perform Pelvic Exam
ST. LOUIS (AP) — Missouri’s only abortion clinic, already facing the threat of losing its license, says it will defy the state by refusing to perform a required pelvic examination days before an abortion.
Calling the exam requirement “disrespectful and dehumanizing,” a Planned Parenthood spokeswoman confirmed that as of Thursday the St. Louis clinic no longer performs it during a consultation at least 72 hours before an abortion. Doctors do perform a pelvic exam at the time of the procedure.
Plans to drop the preliminary pelvic exam were first reported by CBS News.
Planned Parenthood spokeswoman Bonyen Lee-Gilmore said the exam is not required by state law but is an intrusive health department regulation. The health department didn’t immediately respond to messages seeking comment but said earlier this month that the pelvic exam at the time of consultation is required by law.
Dr. Colleen McNicholas, an abortion provider at the clinic, said the decision to drop the preliminary exam was based partly on feedback from patients.
“We believe continuing to force an additional invasive and uncomfortable vaginal exam on patients at least three days before her abortion procedure, when it is not medically indicated, and when she will have the identical exam on the day of the abortion procedure, is not patient-centered; it is disrespectful and dehumanizing,” McNicholas said in a statement.
The health department let the clinic’s license lapse as of May 31, but a judge’s order has kept it open and allowed abortions to continue.
Judge Michael Stelzer said the state can’t simply let the license lapse but must decide whether to deny it or renew it. The state’s decision could be announced Friday at a court hearing in St. Louis.
Health department officials have cited concerns at the clinic, including that three “failed abortions” there required additional surgeries and another led to life-threatening complications for the mother, The Associated Press reported Tuesday, citing a now-sealed court filing.
Should the St. Louis facility close, Missouri would be the first state without a functioning abortion clinic since 1974, the year after the landmark Roe vs. Wade decision that legalized abortion nationwide, according to Planned Parenthood.
The licensing fight in St. Louis comes as lawmakers in Missouri and other conservative states have passed new restrictions that take aim at Roe. Abortion opponents, emboldened by new conservative justices on the Supreme Court, hope federal courts will uphold laws that prohibit abortions before a fetus is viable outside the womb, the dividing line the high court set in Roe.
Republican Gov. Mike Parson signed legislation on May 24 to ban abortions at or beyond eight weeks of pregnancy, with exceptions for medical emergencies but not for rape or incest. Efforts to put the new law to a public vote are tied up in court.
Missouri’s Only Abortion Clinic Will Remain Open, Judge Rules
ST. LOUIS (AP) — A judge has issued an order allowing Missouri’s only abortion clinic to continue providing the service.
St. Louis Circuit Judge Michael Stelzer ruled Friday, just hours before the St. Louis Planned Parenthood clinic’s license to perform abortions was set to expire. He issued a temporary restraining order prohibiting Missouri from allowing the license to lapse.
The Missouri Department of Health and Senior Services had declined to renew the license. It cited concerns with “failed abortions,” compromised patient safety and legal violations at the clinic. Agency officials also wanted to interview additional physicians at the clinic.
Planned Parenthood officials had said that if the license lapsed, Missouri would become the first state without an abortion clinic since the U.S. Supreme Court’s 1973 decision legalizing abortion nationwide.
As Missouri’s Last Abortion Provider Nears Closing, Neighboring Clinics Prepare
With hours to go before the expiration of a state license that allows a Planned Parenthood health center in Missouri to perform abortions, clinics in neighboring states say they’re preparing for an influx of additional patients.
“No one one knows what’s gonna happen in the next day or two, but we have to be ready for this clinic to be closed, and for patients to have nowhere else to go,” said Dr. Erin King, who runs a health center in Illinois across the river from the Planned Parenthood clinic in St. Louis.
King said her facility, the Hope Clinic for Women in Granite City, Ill., has been hiring additional doctors and medical support staff for more than a year in preparation for the possibility that abortion could be restricted in Missouri. Illinois is one of several states considering legislation to expand abortion rights as states including Missouri work in the opposite direction, passing laws banning the procedure in the early stages of pregnancy.
Missouri Gov. Mike Parson last week signed a law criminalizing most abortions after eight weeks. That law has yet to take effect, but the dispute between Planned Parenthood and the Missouri Department of Health and Senior Services over regulatory enforcement is threatening to shut down abortion services at Missouri’s last remaining clinic.
Parson said this week that Missouri health regulators have safety concerns about the clinic. Planned Parenthood officials say they’ve done all they can to comply, and accuse the state of arbitrarily enforcing regulations for political reasons. The two sides have been unable to reach an agreement, and Planned Parenthood has filed a lawsuit asking for a restraining order to prevent the center from being forced to stop offering the procedure.
Providers like King in neighboring states say they’re watching the situation and expecting to take additional patients from Missouri.
“[This] is happening much more quickly than any of us anticipated, so we’re really scrambling” to communicate with patients and open up additional appointments for abortions in the coming days, King said.
Michele Landeau of Gateway Women’s Access Fund, which helps Missouri women pay for abortions, said her organization is looking at ways to connect patients with clinics outside the state and help arrange for transportation, childcare, and other needs.
“People are confused, and they’re scared, and it’s pretty chaotic-feeling right now,” Landeau said.
Abortion providers in other neighboring states said they’re expecting additional patients from Missouri, and planning accordingly.
“We will do our very best to serve any women from Missouri that need to see us,” said Rebecca Terrell of CHOICES health center in Memphis, Tenn. “It may be that we have to add hours; we may have to open on a Saturday; we may have to make some changes, but we will make sure that everybody gets seen.”
In Wichita, Kansas, Julie Burkhart of the Trust Women clinic, said she would expect to see more patients from central, southern, and western Missouri if the St. Louis facility stops providing abortions. She said her facility might look at expanding its hours, but it would take time to hire, train, and license new staff members.
Abortion rights opponents have praised Missouri regulators’ scrutiny of the St. Louis clinic.
In a statement, Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, said ending abortion services there “would be good news for health and safety.”
If the St. Louis clinic loses its license, some hospitals in the state could still offer the procedure, primarily for medical emergencies, Planned Parenthood officials say.
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