How the 'Fundamental Right' to Abortion Faded Away
http://www.theatlantic.com/politics/archive/2014/10/the-disappearing-right-to-abortion/381510/
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So far this term, the Supreme Court drama is offstage. Publicly, the justices doze through a seminar on whether mall-kiosk tooth whitening is unlicensed dentistry. Behind the scenes, however, they have issued cryptic orders that have all but settled same-sex marriage, placed some voter-ID laws on hold, and (as of Tuesday) blocked enforcement of a Texas statute that was about to force closure of 13 of the states 21 abortion clinics.
A district judge had blocked the Texas statute, but the Fifth Circuitprobably the most conservative appeals court in the countryreversed. Now the Supreme Court has stayed the appeals courts order, meaning the clinics can remain open. It seems likely that stay will be in effect until the justices decide whether to hear an appeal from the Fifth Circuits order. But as we have learned with the same-sex-marriage cases this fall, a Supreme Court stay does not mean the Court will definitely hear the appeal. And even if it does, a new case in front of this Court might not clear things up much.
Forty-one years after the Supreme Court held that women have the right to choose between childbirth and abortion, little remains of what was once a fundamental right. How did we get here?
To understand the current case, readers have to grasp the constitutional concept of levels of scrutiny. Its not as bad as it sounds. My former constitutional-law professor, Walter Dellinger, summarized it this way: If government wants to do something to you, it has to give a reason. If it wants to do something really bad, it has to give a really good reason.