Which of these is a substantial burden? A law that results in the closure of abortion clinics and requires women to travel hundreds of miles to exercise their constitutional rights? Or a regulation requiring employers to fill out a form to claim a religious accommodation? This question is at the heart of two of the biggest cases being heard by the Supreme Court this year: one on Texas’s strict new abortion laws, argued earlier this month, and a challenge to the Affordable Care Act and its contraceptive-related provisions that will be discussed at oral arguments today.
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Justice Antonin Scalia’s greatest legacy was his tireless championing of originalism. The method of interpretation he advocated—following the Constitution’s text and history where they lead—offers clear lessons for the current political struggle over the vacancy created by his death, especially now that President Barack Obama has fulfilled his constitutional duty by nominating D.C. Circuit Chief Judge Merrick Garland to the Supreme Court.
Nowhere in the text or history of our Constitution is the Senate permitted to drop an iron curtain across Pennsylvania Avenue and refuse even to evaluate a president's nominee. President Obama has done his job, it's time for Senators to do theirs.
More than 20 years ago, in Planned Parenthood v. Casey, the joint opinion, signed by Justices Kennedy, David Souter, and Sandra Day O’Connor, reaffirmed constitutional protection for the right to choose abortion and crafted the undue burden standard to give “real substance” to women’s liberty, equality, and dignity. Casey explained that “unnecessary health regulations” that substantially burden a woman’s fundamental right are unconstitutional. If Justice Kennedy follows what he’s written, he should vote to put an end to laws, like those enacted by Texas, designed to make an end-run around the Constitution.
Whether the American people trust in our justice system depends, in significant part, on whether they can trust the judges who make up that justice system to be impartial.
It's always difficult to predict what the Supreme Court will do based on oral argument, but it's clear what the justices should do: They should recognize that Chief Justice Castille's participation in Williams' case was a clear violation of the Constitution.