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1 (August 8, 2018)

handle is hein.crs/crsmthzzbdn0001 and id is 1 raw text is: Abortion, Justice Kennedy, and Judge Kavanaugh Jon 0. Shimabukuro Legislative Attorney August 8, 2018 In 1992, nearly 20 years after it concluded in Roe v. Wade that the Constitution protects a woman's decision to terminate her pregnancy, the Supreme Court in Planned Parenthood ofSoutheastern Pennsylvania v. Casey adopted a new standard for reviewing the constitutionality of abortion regulations. Under this new standard, announced in a joint opinion written by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, a reviewing court must consider whether an abortion regulation imposes an undue burden on a woman's ability to have an abortion before fetal viability, the gestational point when a fetus is able to live outside the mother's womb with or without artificial assistance. In the years that have followed, the Court has applied and further explained the undue burden standard in several subsequent cases. With the recent retirement of the last remaining Justice on the Court from the Casey plurality, questions have arisen about the future of the Court's abortion jurisprudence. This Legal Sidebar addresses these questions by first reviewing the undue burden standard and generally discussing Justice Kennedy's views on the standard in the case law that has developed since Casey. The Sidebar then, in light of President Trump's July 9, 2018 nomination of Judge Brett Kavanaugh to replace Justice Kennedy, examines Judge Kavanaugh's only substantive abortion opinion: a dissent in the 2017 case from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), Garza v. Hargan. Finally, as lower courts continue to apply the undue burden standard to new abortion regulations, the Sidebar concludes by noting some of the abortion cases that the Supreme Court could possibly review in the near future. Casey and the Undue Burden Standard. While the Supreme Court in Roe recognized that a woman has a constitutionally protected right to decide to terminate her pregnancy, it also maintained that this right was not unqualified and had to be considered against important state interests in promoting maternal health and protecting potential life. The Roe Court held that at certain points during a woman's pregnancy these interests become sufficiently compelling to sustain regulation of the procedure, establishing a trimester framework to examine such regulations. Finding that an abortion is no more dangerous to Congressional Research Service 7-5700 www.crs.gov LSB10185 CRS INSIGHT Prepared for Members and Committees of Congress

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