You’d need to live in a different universe to believe that the Texas Legislature sought to advance women’s health with this law. It sought to limit abortion by pretending to be concerned about the health of the women who seek abortions. The court was right to invalidate this cynical stunt.

Yet I think Justice Clarence Thomas makes a good point in his dissent, where he contrasts this case with Fisher v. University of Texas at Austin. As I pointed out in my first post, the court upheld U.T.’s affirmative-­action program last week despite the absence of firm social­-scientific evidence that affirmative action advances educational outcomes. Now the court strikes down Texas’ abortion law because of the absence of evidence that the law protects women’s health. If the court wants to make sure that states act only when they have good reason to act, shouldn’t it demand strong evidence in all cases? Why are the speculative benefits of affirmative action for educational outcomes sufficient to uphold an affirmative­-action program, while the speculative benefits for women’s health are insufficient for upholding Texas’ law?

The explanation is simply this: The court’s liberals care about abortion rights and not about the equal­protection concerns that animate opposition to affirmative action. For the conservatives, the opposite is true. Kennedy, not always a friend of abortion rights, came around to them in this case. Kennedy, who once seemed opposed to affirmative action, came around to it in Fisher. He truly swings from both sides of the batter’s box. But increasingly from the left side.

Read more at The New York Times