The abortion rights challenge known as Whole Woman’s Health v. Hellerstedt, which comes before the Supreme Court for oral arguments Wednesday, is the latest battle in the four-decade war over legal abortion in the United States. Pro-life and pro-choice activists have engaged in pitched legal conflict ever since the Supreme Court issued thunderbolt decisions in the 1973 landmark cases Roe v. Wade and Doe v. Bolton, which together established the constitutional right to abortion.
Pro-choice advocates initially believed that these two Supreme Court decisions settled the main issues, but pro-life activists have steadily chipped away at legal abortion rights and access. Until the Hellerstedt case, pro-choice activists were caught in a vicious political cycle: Pro-life proponents would introduce legislation restricting abortion access, and reproductive health advocates would try to prevent its passage and its implementation—with limited success. In Hellerstedt, pro-choice advocates are hoping to change their political fortunes and show that abortion restrictions have legally gone too far.
It’s a critical moment for the pro-choice movement, because until now, at least, pro-life proponents have enjoyed a sweeping string of wins in the state legislatures and in the court. Since the 1980s, pro-life activists have successfully pushed amenable state legislatures to pass restrictions, testing the legislative waters and defending the constitutionality of each new wave of abortion limits all the way to the Supreme Court. In the early stages, abortion opponents stayed away from directly challenging women’s individual rights, and instead focused on bills that required others, such as counselors or parents of teenagers, to take part in abortion decisions.
But the 1992 Supreme Court ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey, which allowed states to restrict access to abortion as long as the requirements did not place an “undue burden” on women’s ability to obtain an abortion, changed everything. This ruling sent the signal that pro-life advocates could push for other kinds of restrictions that would technically keep abortion legal, but would make it virtually inaccessible. Since then, pro-lifers have successfully pushed for the enactment of “informed consent” laws that require women to undergo counseling, obtain ultrasounds, or wait for 24 hours before obtaining an abortion.
Likewise, abortion opponents have persuaded legislatures to pass dozens of “Targeted Regulation of Abortion Provider” laws that drive abortion providers out of business by mandating that clinics obtain hospital privileges and that their facilities mimic those of “ambulatory surgical centers.” Abortion opponents have imposed so many state-level curbs on abortion that in parts of the country, reproductive health advocates say, the right to an abortion enshrined in Roe has become merely theoretical.
At issue in the Hellerstedt challenge is the Texas law HB2, which mandates that clinics meet the standards of and offer admitting privileges at hospitals, a requirement that has slashed the number of clinics offering abortion in the state by more than half. Pro-choice advocates are arguing, among other things, that these restrictions constitute an “undue burden” on women’s right to an abortion. In Hellerstedt, the Court will take this issue up directly, and the decision may be exhilarating or devastating for the abortion rights community. If the Court agrees that the Texas law goes too far, the pro-choice movement will have a legal strategy for battling its opponents for decades to come. If the Court disagrees, abortion will become almost completely inaccessible in conservative states. Of course, with the death of ardent conservative Justice Antonin Scalia, it is not clear how the Court will decide. If the decision is split 4-4, a lower court ruling that affirmed the Texas law will leave the state’s abortion restrictions intact.
Despite the risks of challenging the Texas law, abortion defenders’ decision to go to court makes sense. Pro-choicers are on the political defensive, forced to fall back on constitutional challenges to legal restrictions on abortion procedures. A win here would change how abortion restrictions are legally interpreted. This would throw the pro-life movement even further on the defensive, and may discourage some states from enforcing their laws to curb abortion access.
Pro-lifers, too, have been eager to test the legal system. After pro-choice advocates persuaded some state legislatures to pass buffer-zone laws that prohibit pro-life protesters from blocking abortion clinics and walkways, abortion opponents successfully gutted these laws. In June of 2014, the Supreme Court struck down a Massachusetts law that required protesters to stay outside a 35-foot buffer zone around abortion clinics. Now that similar buffer laws are facing challenges in other states, some are not being enforced. Pro-choice advocates are hoping that a big win in the Hellerstedt will similarly discourage states from enforcing Texas-style abortion curbs.
The stakes in this legal battle are high, but the Court’s decision is unlikely to end the abortion war. Most Americans fall in the “mushy middle” on the abortion issue, meaning that they support some restrictions on abortion, but not an outright ban on the procedure. The Court’s decision, expected this summer, will dictate how those advocating for and against legal abortion try to convince the public, the politicians, and the courts that they are on the right side of the conflict.
This article was posted in conjunction with the Scholars Strategy Network.