The bad news is that Casey remains good law, and its holding remains elusive. Would a state statute prohibiting post-viability abortions except when the life of the mother was in danger be upheld? Perhaps. We don’t know. It would be Justice Kennedy’s call, I suspect.
But there is good news in the disappointment we see in the dissent, authored by Justice Ginsburg:
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman.s health.
I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman.s reproductive choices.
The senators suspicious of the Chief Justice’s and Justice Alito’s testimony have no basis on which to complain that they were deceived. The two did not join Justice Thomas’ concurrence, but neither can that be read as a guarantee of Casey’s viability or reach down the road.
A victory for life, though not a sweeping or even a secure one. And a decision that invites state legislatures to take seriously their obligations to enact laws to protect the unborn.