Scalia: Throw Out Phony Undue Burden Test on Abortion Laws

National   |   Kathy Ostrowski   |   Jan 20, 2012   |   10:38AM   |   Washington, DC

The Washington Business Journal reports that U.S. Supreme Court Justice Antonin Scalia is prepared to discard a major precedent in abortion law when considering a future challenge to state regulations of abortion clinics, such as those approved in Virginia, Kansas and South Carolina.

A self-described  “originalist”, Scalia addressed a meeting of Washington, D.C. attorneys Thursday, affirming that the 14th amendment confers rights to the states.  But he repeated his long-held view that the Constitution is silent on abortion and that judges should stay out of the issue.  Scalia mocked the so-called ‘undue burden’ principle on accessing abortion thusly:

“So I run to the law books to see what an ‘undue burden’ is,” Scalia said. “What do you know, for 200 years, no burden was an undue burden. You could prohibit it. So I can’t use the law books.”

Scalia’s exasperation with courts inventing abortion law as they go along– together with the 4 pro-life vs 4 pro-abortion (and one swing vote) composition of the U.S. Supreme Court –ties in with why the Kansas abortion clinics switched to the state courts to fight the new law for licensing, inspection and regulation of abortion businesses.

Attorneys search the history of appellate courts and state supreme courts before they move forward with litigation.  In two out of three attempts this summer at the federal courts in the Kansas jurisdiction, abortion lawyers succeeded in securing injunctions to block new Kansas laws: the family planning funding case and the temporary rules of the licensure law.

But days before the permanent licensure rules went into effect, the abortion lawyers smoothly slid into state court and dropped their original federal suit, gauging that they weren’t going to win in federal court in the long run.  This is where the comments of Scalia above probably make them smile, because they are now going to fight Kansas abortion clinic safety and sanitation rules in state courts, where the highest authority is the abortion-leaning Kansas state Supreme Court.

Comments about the change-up in the licensure lawsuit strategy were posted by the lead sponsors of the licensure law, Rep. Lance Kinzer and Sen. Mary Pilcher-Cook.  Picher-Cook’s press release is excerpted here:

“The dismissal of the federal [licensure] lawsuit is a clear admission that the law was consistent with the United States Constitution. I am certainly gratified by this decision, as it reflects facts we knew when we originally drafted the legislation — that protecting the health and safety of women is completely consistent with constitutional principles.
“However, there is caution ahead. By these abortion providers focusing their attention on the state lawsuit, the abortion clinics are going to attempt to argue that there is a broader right within the Kansas Constitution – that they now recognize doesn’t exist in the U.S. Constitution – to essentially have abortion on demand without any oversight, putting them in a special status that would allow them to ignore the health and safety of women.
“While this claim is unreasonable on the surface to argue the framers of the Kansas Constitution meant to convey such a “right” for abortion clinics, it is indeed revealing that the petitioners think they might find a welcome ear to their arguments on the Kansas Supreme Court.”

Pilcher-Cook is right to be concerned as there is no settled state law in the status of abortion in the state constitution.  The last case that touched on the state constitution and abortion didn’t end up with any ruling on whether abortion had the status of a protected right.

That case was in 2006, when the Kansas Attorney General’s Office had to carry out a joint legislative order to argue in state court that, under our state Constitution, state money was not allowed to pay for Kansas Medicaid abortions.  Similar cases in other states had failed on this issue and this one was no different, though the Kansas case was very capably argued by attorney Kinzer on behalf of the AG’s  office.  The state court ruled in favor of the federal ‘supremacy rule ‘ …the same supremacy rule now being invoked to defend mandated purchase of insurance under Obamacare.

Will Kansas pro-life laws stand under state court scrutiny?  The animus is clear, as today, the NARAL abortion advocacy group issued their snapshot of  state legislative actions, declaring Kansas, Arizona and Florida tied for enacting the most “anti-choice”(as they call it) legislation in 2011, with five measures each. See pgs 4-5 of their summary, here. Note: Kathy Ostrowski is the legislative director for Kansans for Life, a statewide pro-life group.