Yesterday’s Supreme Court ruling on Texas’s abortion law was a setback for the pro-life cause. But not as big of a setback as some would have you believe.
Yesterday, the Supreme Court, by a 5-3 vote, struck down Texas’s House Bill 2, which required, among other things, a physician performing an abortion to have admitting privileges in a hospital within thirty miles of where the procedure is performed.
It also required that “the minimum standards for an abortion facility be equivalent to the minimum standards … for ambulatory surgical centers.”
Let’s not mince words: The Court’s decision in Whole Woman’s Health v. Hellerstedt is a setback for the pro-life cause.
To fully grasp what all of this means, some background is in order. While Roe v. Wade established a “constitutional right” to abortion, state and local governments may regulate some aspects of abortion: for instance, requiring a waiting period and parental consent in the case of minors.
But in series of cases culminating in Planned Parenthood v. Casey, the Supreme Court placed limits on these kinds of regulations, ruling that regulations that place an “undue burden” on a woman’s “right” to an abortion were unconstitutional.
In the 24 years since Casey, what constitutes an “undue burden” has been decided on a case-by-case basis as pro-life forces and their legislative allies have tested legal boundaries. In the Texas case, pro-abortion forces responded by claiming that the “right” to an abortion was “in jeopardy.”
Now all of this, of course, was nonsense. But even someone like CNN’s legal analyst Jeffrey Toobin wondered if the Court would uphold the “undue burden” standard or “give states an even freer hand to restrict abortion rights.”
Both sides got their answer on Monday. Writing for the majority, Justice Breyer wrote that “There was no significant health-related problem that the new law helped to cure.” He added that “the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”
In response to the decision, the Alliance Defending Freedom expressed its “[disappointment] that the Supreme Court has ruled against a law so clearly designed to protect the health and safety of women in the wake of the Kermit Gosnell scandal.”
You might remember Kermit Gosnell, the Philadelphia abortionist and his so-called “house of horrors.”
As ADF wrote, “Abortionists shouldn’t be given a free pass to elude medical requirements that everyone else is required to follow. Any abortion facilities that don’t meet basic health and safety standards are not facilities that anyone should want to remain open.”
Unfortunately, five justices disagreed, which leaves us with the obvious question: Where to from here?
First, let’s remember this is only one front in a continuing struggle that is making progress. The current abortion rate is lower than it’s been since before Roe was decided in 1973. And even without laws like the Texas one in place, pregnancy care centers outnumber abortion clinics by as much as three–to–one.
So while the decision is indeed a setback, it does not change the brilliant day-out-and-day-in work of so much of the pro-life movement. Limits of what can be done legislatively will continue to be decided on a case-by-case basis, and we’ll continue to pray them on. But remember: the goal is not merely to make abortion illegal. We want abortion to be unthinkable.
Which leaves us with the hard work of continuing to create a culture of life. For those of you hard at work, I can’t thank you enough for your faithfulness.
Tomorrow on BreakPoint, I’ll have some more thoughts for you on this decision. Please tune in.
Pro-Life Setback: The Supremes Strike Down Women’s Safety
For further reading on the Supreme Court decision and the efforts of the pro-life community, check out the links below.
Women’s Health and Safety at Risk after Supreme Court Rules Against Texas Law
Katie Heller | ADF website | June 27, 2016
Study: Abortion rate at lowest point since 1973
Sandhya Somashekhar | Washington Post | February 2, 2014
Explainer: Supreme Court ruling on Texas abortion case
Joe Carter | Ethics and Religious Liberty Commission | June 27, 2016
Whole Woman’s Health et al v. Hellerstedt, Commissioner, Texas Department of State Health Services, et al
Supreme Court decision text pdf | June 27, 2016