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New York Times Quotes Professor David Cohen on Sweeping Supreme Court Decision

David S. Cohen

July 01, 2016

The New York Times on June 27 quoted Professor David Cohen in an article about a U.S. Supreme Court decision, written by Justice Stephen Breyer, to strike down a Texas law that restricted abortions.

The 5-3 ruling in Whole Woman’s Health v. Hellerstedt , which found parts of a law that dramatically reduced the number of clinics that could perform abortions in the state, was the most sweeping decision the court has made regarding abortion since the Planned Parenthood v. Casey ruling in 1992.

Justice Anthony Kennedy’s motives for voting with the majority are not clear, said Cohen, a constitutional scholar and an expert on reproductive rights and gender issues in the law.  

While Kennedy’s vote in the Casey decision has contributed to a perception that he supports abortion rights, Cohen noted that it was the only time in his 28 years on the Supreme Court that he had previously found an abortion restriction to be unconstitutional.

In the Texas case, Cohen speculated, Kennedy may have been swayed by the burdens placed on women forced to drive hundreds of miles to obtain abortions or by the lack of medical evidence to justify the imposition of onerous restrictions on abortion clinics.

The Legal Intelligencer in an article on June 29 observed that the ruling will affect policy in Pennsylvania, which adopted a law forcing abortion providers to comply with the same requirements as ambulatory surgical facilities.   

Cohen said in the article that the Pennsylvania legislature has a history of ignoring Supreme Court precedent on abortion.

On July 1, Cohen was also quoted by the Talking Points Memo blog in an article exploring the future landscape for abortion rights.

Cohen predicted that the courts will be forced to scrutinize many state laws that have imposed restrictions on abortion clinics.

“Anti-abortion legislators are going to do what they do, which is pass anti-abortion laws, so we’re always going to have these challenges," Cohen said. "But will they be able to point to one instance of one woman who had a problem and say that because of that, the law is constitutional? No, I don’t think Justice Breyer’s opinion leaves room for that.”

The co-author of “Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism,” Cohen scholarly work also includes “Justice Kennedy’s Gendered World,” which was published in the South Carolina Law Review.