Almost 50 years after Roe v. Wade, more than 100,000 people will walk through Washington today in support of life, chanting loudly enough to be heard within the chambers of the Supreme Court. And this year, for the first time in decades, the nation’s highest court appears ready to listen.
Beginning with its disastrous Roe v. Wade decision, the Supreme Court has mistakenly embraced the idea that a woman’s constitutionally protected interests include the right to abort her unborn child. A few decades into the Roe era, the court reviewed several provisions in Pennsylvania’s Abortion Control Act. These included requiring a waiting period and informed consent, spousal notice, and (for minors) parental consent prior to an abortion.
A plurality of Supreme Court justices in Planned Parenthood v. Casey concocted a standard for evaluating the constitutionality of abortion regulations. “Only where the state regulation imposes an undue burden on a woman’s ability to make this decision [to abort],” they said, “does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” Applying this standard, they upheld all of the challenged provisions except the requirement for spousal consent.
The Casey justices sought to establish a practical, pragmatic guide for courts to use in determining the constitutionality of state regulation of abortion. But, as the old saying goes, the problem with pragmatic solutions is that they generally don’t work.
Since Casey, a cottage industry of abortion apologists in the legal profession has sprouted up to attack any and every state regulation on abortion. These “reproductive rights” advocates argue the same thing in every case — that the law at issue places an “undue burden” on abortion access.
Their most recent win came in 2016, when the Supreme Court struck down two Texas abortion regulations. One required that abortion providers have admitting privileges at a hospital within 30 miles. Another mandated that abortion providers have facilities comparable to surgical centers. What was most disturbing about Whole Women’s Health v. Hellerstedt was the fact that, like Casey, no aggrieved woman had filed suit. No actual evidence of a burden on real women was presented. Rather, it was the abortion clinics and abortionists who filed the lawsuit.
“Whatever scrutiny the majority applies to Texas’ law, it bears little resemblance to the undue-burden test the Court articulated in [Casey] and its successors,” Justice Clarence Thomas wrote in his dissent.
“Our jurisprudence has gone off the rails,” he lamented.
This year, the Supreme Court might, at long last, be able to get its abortion jurisprudence “back on the rails.” The court is set to review a Louisiana law that requires doctors to have admitting privileges at a hospital not farther than 30 miles from where they perform abortions. As the state explained in an initial brief to the court, state policymakers adopted the law “based on a lengthy history of abortion clinic safety violations reflecting the clinics’ indifference to doctor qualifications and the threat that indifference poses to women.”
The case, June Medical Services v. Gee, gives the Supreme Court an opportunity to walk back its 2016 Whole Women’s Health decision and uphold this state’s modest regulation of abortion. That it’s prepared to do this could be seen in a case that the court decided not to take up just last month. It let stand a lower appellate court’s decision upholding a Kentucky law that requires doctors to provide ultrasounds and show fetal images to women contemplating an abortion. The court deferred in that case to the state’s legitimate concern that women not be kept in the dark when making a decision of such consequence.
The Supreme Court’s decision not to review the case is a victory for common sense regulations, transparency, as well as the protection of women and the unborn. We can hope — pray — that it’s also a sign of things to come.
For half a century, Roe, Casey, and Whole Women’s Health have hamstrung the judiciary, frustrated state legislators, and confused more than one generation about the inherent dignity of women. The Supreme Court now has an opportunity to reestablish a constitutional order, a jurisprudence that allows states to enact regulations that respect the safety and well-being of women and their unborn children.
That’s something to cheer on at a March for Life whose theme this year is “Life Empowers: Pro-life is Pro-Woman.” It’s a rallying cry for the country’s women and the men who love them, and a rallying cry as well for a Supreme Court to get back on the rails.
Andrea Picciotti-Bayer is legal adviser for The Catholic Association Foundation and co-host of the podcast Conversations with Consequences.
