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Penn Law faculty members respond to the Supreme Court decision on the Texas abortion law

June 29, 2016

Penn Law faculty members respond to the Supreme Court decision on the Texas abortion law.

 

Kermit Roosevelt, Professor of Law
Since it was announced in Planned Parenthood v. Casey, the undue burden test has proved malleable and indeterminate. Just as he finally found an affirmative action program he could support in Fisher, Justice Kennedy has finally found an abortion regulation he deems an undue burden. That shows there are limits to the degree to which he’s willing to assume that states are acting in good faith. As with affirmative action and the Fisher case, though, this decision will probably mean little if a Democrat appointee fills Scalia’s seat. In that case, Breyer will become the median Justice and Kennedy’s views will be less important.
 
What I hope this does is put to rest some of the fallacies from a medical and scientific point of view about the safety of first trimester abortion from the woman’s health point of view. Justice Breyer’s opinion cited peer reviewed studies and basically said this is an extraordinarily safe procedure in the first trimester and this ramping up of these pseudo-regulations that Texas’s legislature has tried to do was a blatant effort to distort the science in service of a political end.”