Why the Supreme Court couldn't tolerate Texas' abortion laws

Even to Anthony Kennedy, it was an obvious sham

Abortion rights activists cheer the court's decision Monday.
(Image credit: MANDEL NGAN/AFP/Getty Images)

Texas finally pushed Anthony Kennedy too far. For more than two decades, states have pushed the envelope on abortion regulation, passing restrictions that in some cases make it nearly impossible for abortion clinics to operate. On Monday, the Supreme Court finally cracked down on these attempts to surreptitiously ban abortion. In the Court's most important abortion decision since 1992, the Court struck down the worst parts of a Texas abortion statute that would have required most of the state's abortion clinics to close. It was a major victory for the pro-choice movement.

In the 1992 landmark Planned Parenthood v. Casey, the Supreme Court upheld Roe v. Wade. But this upholding of Roe came at a major cost. The Court's opinion permitted restrictions of abortion that did not constitute an "undue burden." In theory, this standard could provide robust protection for reproductive rights. In practice, the Court has allowed states to pass virtually any regulation of abortion that isn't an outright ban on pre-viability abortions. That is, until Monday. Texas' abortion statute was passed in such egregious bad faith that Kennedy — one of the authors of Casey and the Court's swing vote on abortion rights — couldn't look the other way.

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Scott Lemieux

Scott Lemieux is a professor of political science at the College of Saint Rose in Albany, N.Y., with a focus on the Supreme Court and constitutional law. He is a frequent contributor to the American Prospect and blogs for Lawyers, Guns and Money.