The season of waiting for the Supreme Court to issue some of its most controversial rulings of the year is upon us, and one of the most far-reaching decisions is the one on Texas’s abortion health and safety law. HB 2, adopted by wide margins in the state legislature, created tougher standards for Texas clinics and required abortion doctors to have admitting privileges at hospitals to facilitate treatment of complications.
It is always possible that the Court, which is short one member due to the death in February of Justice Antonin Scalia, will deadlock over the Texas law. But even if it doesn’t, the Court is closely split on abortion policy, which makes 2016 a potential turning point.
From one perspective, things could hardly be worse for right-to-life advocates. More than four decades after Roe v. Wade, the basics of that ruling are still in place and the United States still sees more than one million abortions each year. Abortions are legal in half the states even in the third trimester, public funds flow to abortion in 17 states, and the nation’s largest abortion provider, Planned Parenthood, receives more than$500 million from the government each year. Recent efforts to limit abortion after 12 weeks of pregnancy have been struck down, as have two states’ laws to limit abortion after 20 weeks of pregnancy.
Given this state of affairs, how much more damage could the replacement of Justice Scalia with a judicial activist for “abortion rights” actually do? Would the confirmation of Merrick Garland, President Obama’s pick for the high court, really make that much difference to national abortion policy? Would the confirmation of pro-life judges, like those included in a list recently released by the Trump campaign, really play a dramatic difference in the lives of every American? The answer to both questions is an emphatic “yes.”
As legal expert Angelina Nguyen documented in her detailed study of international law for the Charlotte Lozier Institute, the U.S. legal regime on abortion is ultra-liberal. We are one of seven nations (out of nearly 200 she examined worldwide) that permit elective abortions after 20 weeks post-fertilization. As liberal as our legal framework is, however, it is also surprisingly volatile. In the past six years, 17 states have adopted laws to protect the unborn child at 20 weeks or earlier. In 14 of these 17 states, no legal challenge has been mounted. Whether it is lack of a plaintiff or fear of a court ruling that would uphold these laws, pro-choice forces have chosen to leave them alone for now.
Marjorie Dannenfelser is the president of the Susan B. Anthony List, a national pro-life organization dedicated to electing leaders and advancing legislation to reduce and ultimately end abortion.