Now that the Supreme Court has overturned Texas legislation requiring admitting privileges for abortion doctors at local hospitals, expect the anti-abortion movement to push in a new direction.
By Joshua C. Wilson
A demonstration on the steps of the United States Supreme Court on June 27, 2016. (Photo: Pete Marovich/Getty Images)
In a recent interview with National Public Radio about the Supreme Court’s Whole Woman’s Health v. Hellerstedt decision to strike down two provisions in Texas’ controversial regulations of abortion providers known as H.B. 2, Marjorie Dannenfelser of the Susan B. Anthony List, a prominent anti-abortion organization, said that “I find it ironic that — that I … as an advocate against abortion would be advocating for safe abortion.” She went on to say that, in the wake of the Court’s decision, her organization’s “strategy will remain the same. And that is to focus on the life of the unborn child and the rights of women … our late-term ban, or the 20-week bill, will remain a priority.”
Dannenfelser’s comments are telling because they illustrate the ways in which the Court has — and is continuing to play — a fundamental role shaping the direction and substance of abortion politics.
The casual observer might agree that it seems “ironic” that Dannenfelser and the rest of the mainstream anti-abortion movement have taken a position that seems to champion the rights of women to seek safe abortions. While the Court directly targeted and discredited the claims that Texas’ requirement that abortion doctors have admitting privileges at local hospitals, and that all abortion clinics meet surgical center requirements, was serving the interests of protecting women’s health, this framing of the movement’s efforts will persist. This is because the “women’s health” claim is a strategic response to what had been the Court’s most important abortion decision, established almost 25 years ago in Planned Parenthood v. Casey.
Casey’s ambiguous standard gave the anti-abortion movement a new direction away from trying to directly overturn Roe v. Wade.
The Court’s 1992 ruling in Casey announced that states have a concurrent interest “from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” This meant that states could regulate abortion so long as those laws did not create an undue burden on women seeking abortion before the fetus was viable. While the Court insisted that “[t]hese principles do not contradict one another,” they can, at a minimum, be seen as unclear, if not in direct conflict.
Casey’s ambiguous standard gave the anti-abortion movement a new direction away from trying to directly overturn Roe v. Wade — the case that legalized abortion nationally — and toward creating state regulations that could restrict abortion access in the name of “protecting the health of the woman and the life of the fetus” — roughly the words Dannenfelser used to define the Susan B. Anthony List’s ongoing strategy.
The Court’s recent decision in Whole Woman’s Health has modified Casey by giving additional detail to what it means for a state to erect an undue burden on women seeking abortion — something that it had not done much to define in the past. This added clarity resulted in removing two of the leading forms of anti-abortion legislation from the table, severely hobbling the anti-abortion movement and forcing it to re-think how it will move forward. As Dannenfelser’s words reveal, however, the Court has left the basic structure of the conflict intact.
Activists pray on the steps of the United States Supreme Court on June 27, 2016. (Photo: Pete Marovich/Getty Images)
We can expect to see the movement continue to experiment with what it can acceptably legislate in the name of women’s health, but the ability to do so with the effect of closing clinics otherwise deemed as medically safe for women is now seriously impeded. To quote Justice Ruth Bader Ginsburg’s brief concurring opinion in Whole Woman’s Health, “laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion.’ cannot survive judicial inspection.”
It is possibly for this reason that Dannenfelser, while still invoking women’s health, returned to a Texas provision that was not struck down by the Court — the ability to ban abortion 20 weeks after fertilization with exceptions made for protecting the health and life of the woman. The Texas legislation cites “fetal pain” as the reason for this restriction, a point made in the interest of protecting the fetus before fetal viability, and one that is not defined or agreed upon in the medical literature. While such regulations do not ban abortion altogether, or force clinic closures, they do set the limit for most women seeking an abortion to a point before the Court standard of viability, allowing the anti-abortion movement to continue incrementally chipping away at access.
Given this, we are likely to see a surge in 20-week, or earlier, fertilization bans in states seeking to limit abortion access as the movement experiments with other strategies of regulating abortion to replace those just removed by the Court. This makes these bans the next most likely abortion politics battleground, first in legislatures, and then back in the courts.