The abortion right in the United States, given full force in Roe v Wade, has never been a plain sailing affair. The language of rights is ever a prickly matter, marred by the undergrowth of burdensome reasoning and poor application. In a country where the foetus, less than quality of life, is holy, obstacles will always exist.
The subject before the US Supreme Court justices in the case of Whole Woman’s Health v Hellerstedt involved particular Texan regulations that were found to be an “undue burden” on a woman’s right to have an abortion. As Planned Parenthood of Southeasters Pa. v Casey (1992) asserted, such a burden exists if the “purpose or effect” of the law “is to place a substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability.”
These regulations required that clinics meet the standards of ambulatory centres, with physicians maintaining access privileges at hospitals within 30 miles. Justice Stephen Breyer, in an opinion joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, was not convinced that these regulations offered “medical benefits sufficient to justify the burdens upon access that each imposes.”
What concerned the majority opinion was the imposition of obstacles in the pathway of women’s reproductive rights. “Each [requirement] places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”
Those advocating such rules inhibiting abortion rights insist, not always convincingly, that they are not strictly speaking anti-abortion laws at all. These are cloaked in the language designed to protect, not impede, a woman’s health.
Such reasoning tends to come in two stages: the advocacy of women’s health being the necessary garment to promote; then the ultimate aim of protecting the foetus. Texas Gov. Greg Abbott is a case in point, explaining on Monday how the Supreme Court had supposedly eroded “states’ lawmaking authority to safeguard the health and safety of women, and subjects more innocent life to being lost.”
The latter construction is important, largely designating the woman not as an independent subject of law, but one subservient to carrying that “innocent life” for the state. An evident hierarchy of exercising rights becomes all too clear, as characterised by Abbott’s next remark, which is the articulated Texan goal as protecting “innocent life, while ensuring the highest health and safety standards for women.”
Previous litigation on the subject in the state, including a decision by the federal District Court in Austin, found that a consequence of the rules would be to close clinics that did not operate within or in proximity to major city centres. Those not in or near Dallas, Houston and San Antonio, by way of example, would shut down, a considerable matter given the geographical area the size of Texas.
The closure of facilities has not been a hypothetical matter. The state’s own records as of February 2016 indicate a reduction of 20 facilities offering abortion services, down from 39 in 2012.
The District Court also found other consequences: a doubling of the number of women of reproductive age living more than 50 miles from a clinic while those living more than 100 miles had increased by 150 percent. Similar privilege-access laws in other states have also had the effect of running down clinic facilities.
This was not all. Showing how polarisation on the benches has become something of a pre-programmed switch, three conservative judges went against the majority in what came down to a 5-3 ruling. It took Justice Anthony Kennedy’s swing vote to make the difference.
A dissenting Justice Samuel Alito preferred to focus on state autonomy, and its undue trammelling by a court that had ceased to be “neutral”. This has been the singular formula of US constitutional law since the early days of the Republic: the extent a Supreme Court can badger a state to abide by broader, federal rules.
The watchwords there are non-interference and neutrality, guided by rather sterile notions of procedural propriety. “When we decide cases on particularly controversial issues,” wrote Justice Alito, “we should take special care to apply settled procedural rules in a neutral manner.” Controversy, in short, should breed caution.
Justice Alito, jointed by Chief Justice John Roberts and Justice Clarence Thomas, resorted to bomb analogies of a rather severe sort. “Federal courts have no authority to carpet bomb state laws, knocking out provisions that are perfectly consistent with federal law, just because it would be too much bother to separate them from unconstitutional provisions.”
Conservative commentary on the subject similarly returns to the sacred grove of the objective reader (in itself, a fantasy) which would take issue with contriving constitutional rights from nothing. This, railed Kevin D. Williamson in The National Review, was a similar act of imagination contrived by Justice Harry Blackmun, the conjurer of dark magic that led to finding a constitutional right to abortion in Roe v Wade.
Williamson prefers to keep it simple. Ignore those astrologers who have legal qualifications, and instead focus on those “non-trivial number of” Americans who “would rather put their unborn children to death than be burdened with the responsibilities of parenthood, even if they are only short-live responsibilities.” Fire-breathing judgment comes easily to this form of Calvinist thinking.
Whole Woman’s Health v Hellerstedt shows otherwise, demonstrating the muscular assertiveness of the court as an arm of federal government that can transform as much as it impedes. For those on the side of the pro-abortion argument, the case was simple affirmation of an established rule. For conservatives, it was a satanic product of an intrusively legal imagination.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: firstname.lastname@example.org