Yesterday the Supreme Court ruled against the state of Texas in an abortion ruling that has national implications regarding attacks on Roe v. Wade. The court struck down as "unduly burdensome" regulations that were presented as being “in the interests of the health of the mother” but in fact were designed to shut down clinics that provide services to women.
The ruling came down in a 5-3 division of the court with Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts dissenting — no great surprise there. But it was a yet another example, in a long line of examples, of why the choice of a Supreme Court justice matters and presents the strongest opportunity for a president to build a legacy that far exceeds their own lifetime even.
Justice Anthony Kennedy, who has frequently been a swing vote on this type of close call decision was nominated by President Ronald Reagan in 1987 and took office in 1988. In the ensuing 18 years Kennedy has frequently been the deciding vote that tilted the court one way or the other. He is a voice of reason in a court that is often partisan.
Politicians want to be partisan — it's what gets them elected — but jurists shouldn't be. We have no better example of the excesses of partisanship than what is currently not happening in Congress with the entrenchment of far-right Republicans flatly refusing to do their sworn duty. The refusal to hold hearings on a clearly qualified justice to take the seat vacated by the death of Antonin Scalia is nothing more than dereliction of duty, but it plays to the Tea Party wing of the Republicans, and the “hard right” that want to obstruct and delay in the hopes that they will have a Republican president.
The thought that Donald Trump could be nominating justices to the Supreme Court should send a cold shiver down any thinking person's spine. The next President will be nominating at least two and possibly as many as four Justices, which means that this President will have the potential to set the tone of the country for the next 25-35 years. This is especially true in light of the longer terms that each Justice is now serving as people live longer due to better medicine and health protocols. Granted a President Trump would have to get his nominations past Senate hearings, and hopefully they would exercise some measure of sanity and reject clearly inappropriate and ill-equipped candidates. But the Senate doesn't seem to be thinking clearly these days - they're refusal to do their duty doesn't leave me hopeful that they have anything in mind other than their own re-election so I don't know what they would give or deny to a President Trump.
This week's abortion ruling was crucial to not just women's rights across the country, but all rights. This ruling sends a message that this court will still investigate not just the facially valid reasons for a law, but the actual impact it has when enforced. It is often in the real life application that a law becomes either practicable or unduly burdensome.
On its face the Texas law looked like it had the best of intentions — to protect women by making sure that if they are going to get an abortion, they are in a facility that is properly outfitted and that the treating physician had admitting privileges at a nearby hospital, should something go wrong during the procedure. That all sounds like a good idea. But the reality is that abortions have a very low incidence rate of something going wrong. The clinics that provide them are usually run on a shoe string budget and they need to be located in more than just major metropolitan areas to serve those at most need, which means they are less likely to be near a major hospital.
It was for these reasons that the law looked acceptable until it was actually applied, and its effect would be to shutter most of the clinics in Texas and the effect of that would mean women seeking an abortion would have an undue burden. They would have to travel greater distances, sometimes hundreds of miles that would make an abortion impracticable for them.
Had a purely partisan court looked solely at the facial validity and not delved into its actual effect, it could have ruled the other direction and triggered the shuttering of over 50 percent of the clinics in Texas and have a negative effect of the lives of millions of women across the state of Texas and then across the country as other states implemented similar legislation in an assault on abortions.
Why should we care in California? We have the right to abortions, and it is seemingly untouchable. Yes, but things change. Lest I remind you of Proposition 8 ...
This is why Supreme Court justices matter. This is why presidential politics matter. We're not just choosing a president for four years; we're choosing a legacy, and a future.
David Pisarra is a Los Angeles divorce and child custody lawyer specializing in fathers' and men's rights with the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. Reach him at dpisarra@pisarra.com or 310-664-9969. You can follow him on Twitter @davidpisarra.
