The Supreme Court’s abortion ruling has renewed a key strategic question for the anti-abortion movement: How much to focus on women versus the unborn.
In a broad 5-3 ruling Monday that stunned and deflated abortion opponents, the justices wiped out years of work by Americans United for Life, National Right to Life and other groups who carefully crafted abortion provider regulations, prompted dozens of Republican-led states to pass them and then watched their strategy blossom as clinics shuttered around the country.
The court slammed the brakes on that technique by deeming unconstitutional Texas’ law requiring abortion clinics to meet higher facility standards and doctors to have hospital admitting privileges, saying that by shuttering clinics, such laws make it too hard for women to obtain an abortion.
Now that the clinic-safety-women’s-health approach has backfired, some anti-abortion activists are urging a renewed focus on the unborn.
“I think a sincere commitment on women’s health — there’s always room for that,” Susan B. Anthony List President Marjorie Dannenfelser told the Washington Examiner. “But the pro-life movement can never lose sight of its aim, and that is to protect the life of the unborn.”
Dannenfelser and others say the ruling may do at least one thing to unite them, by reinforcing the importance of electing lawmakers who oppose abortion and a president who would appoint conservative justices.
“I think the pro-life movement will continue to fight,” said Texas Attorney General Ken Paxton. “I think we’ve got to win more elections. This points out how important the presidential election is and points out how we just cannot stop and take for granted that we’ve won this battle.”
Dannenfelser, who has reluctantly embraced presumptive GOP presidential nominee Donald Trump, said the court’s decision has solidified her group’s commitment to electing conservative lawmakers and getting a 20-week abortion ban passed.
“I know where we’re going from here,” she said. “We’re myopically focused on this election.”
But there’s no overall consensus among the major anti-abortion groups about how to proceed legislatively in the wake of the Whole Women’s Health ruling, or how to frame their arguments.
Over the last few years, Americans United for Life and others had sought to soften their public image by stressing that they care about women and not just their fetuses. To that end, they’d given GOP legislators sample legislation that justifies stricter requirements on abortion providers by appealing to the safety of women.
“I think talking about women’s health … that has shifted opinions in some ways that are useful to us,” said Michael New, a political science professor at Ave Maria University who tracks the abortion wars.
Yet their hopes that the health and safety-focused laws would pass Supreme Court muster were shattered, when the court not only struck down Texas’ law but did so in a ruling that could kill such measures in more than a dozen other states, too.
Admitting privileges laws are being litigated in five states — Alabama, Louisiana, Mississippi, Oklahoma and Wisconsin — and in effect in three others, Missouri, North Dakota and Tennessee. Surgery standards are in place in Michigan, Missouri, Pennsylvania and Virginia and are blocked in Tennessee.
Abortion rights supporters are predicting the court’s decision will not just tamp down clinic regulations, but other attempts to restrict abortion, like enforcing tighter guidelines for administering medication abortions.
“We expect this decision to be a powerful tool,” said Stephanie Toti, senior counsel at the Center for Reproductive Rights.
Most state legislatures have recessed for the year. But when they convene next spring, anti-abortion advocates will likely need to push for alternate ways to tamp down on abortion, like bans limiting abortion midway through pregnancy.
“With regard to this decision, it’s going to take us a few weeks to assess it and read it and re-read it and try to identify what the states can do next,” said AUL Acting President Clarke Forsythe.
Forsythe says he doesn’t think the court’s decision permanently shuts the door on clinic regulations, but acknowledges that states would have to give a much more convincing argument that they benefited the health of women.
“We don’t read today’s decision as foreclosing all health and safety regulations, but it clearly puts a greater burden on the states to give the justices more evidence,” Forsythe said.
Yet it’s unclear what kind of safety regulations the Supreme Court in its current makeup would uphold, as its Whole Women’s Health ruling set a dramatic new precedent. Instead of just determining the Texas law constituted an “undue burden” on women trying to get an abortion, the court also said it served no real purpose.
For states to defend future abortion provider regulations, they’d have to convince the justices who support abortion rights that further regulations are justified — a task that could be difficult. Toward that end, abortion foes could water down the laws, but then they might not have the effect of shuttering clinics or doing much to improve safety.
“It’s hard for me to imagine what set of facts are going to persuade [the justices] that a particular justification is strong enough to restrict a woman’s right to an abortion,” said Carter Snead, director of the Center for Ethics and Culture at Notre Dame University.
The author is related by marriage to an AUL board member.
