As Coloradans remain shocked and saddened by the deadly attack that took place at a Planned Parenthood clinic in Colorado Springs, the women’s health care provider most directly associated with abortion services is bracing for bigger headlines during the coming Supreme Court session.
While law enforcement sifts through the crime scene and undertakes what will surely be a massive investigation into the motives and planning of the attack, politicos on both sides have already sprung into full swing assigning, diverting and shifting blame on the wider policy debate regarding abortion. Pro-life versus pro-choice. Democrat versus Republican. Each side growing increasingly shrill as the political cacophony overtakes the event itself.
That sets the scene for what is sure to be a massive decision next June.
After remaining on the sidelines for nearly a decade, the United States Supreme Court is poised to re-enter the debate for the first time since 2007 and potentially clarify a major point of contention stemming from one of its own rulings in 1992. As lawyers prepare briefs and undergo moot-court preparations for oral arguments, you can bet that every group with a political interest will be gathering their forces to react swiftly and loudly.
Of the most prominent policy issues debated in our country, abortion rights are unique in their association with our court system. Everything flows from the decisions handed down by judges. For example, the Roe v. Wade decision in 1973 is among the very few Supreme Court decisions with wide name recognition among the general public. The majority of people walking down the street know that case deals with abortion, even if they don’t understand the legal basis or central holdings. They also understand that it has been crux of a major culture war for more than 40 years.
While Roe v. Wade declared a constitutional right for women to obtain abortions, it did not find the right to be unmitigated. It allowed states to continue enacting legislation and regulations aimed at protecting women’s health and potential human life related to late-term pregnancies. Those exceptions gave disheartened pro-life advocates the means to continue testing and prodding the legal boundaries of abortion rights in the following decades. By using Roe v. Wade as a rallying cry, pro-life advocates helped to nominate and elect legislators who would advance their cause. In a myriad of proposed laws, many adopted and many defeated, that march has continued.
And as legislatures passed laws placing new restrictions on abortion rights, the end result often found the two sides packed into courtrooms again.
Twenty years after Roe v. Wade, the Supreme Court addressed the influx of new restrictions created in the decision’s wake. In 1992, the Supreme Court reviewed many of the most widely implemented policies in Planned Parenthood v. Casey. Challenges to informed consent, spousal and parental notice, and medical emergency laws had finally filtered up to the court. While upholding the central finding of Roe v. Wade — that woman retained a constitutional right to obtain an abortion — a fractured court established a new “viability” standard and restricted any law that would place an “undue burden” on women’s rights before viability.
Rather than resolving the issue, the Casey court only redirected the debate.
While some proposed pro-life policies continued to focus on individual women and flesh out a concrete meaning of viability, most turned their attention to the organizations, institutions, and personnel performing the procedures. The change in tactic effectively blunts the emotional pull involved in laws aimed at individual women and sterilizes the argument by reframing the opponent as cold, faceless, lifeless organizations and offices.
Implementing the organization-as-opponent strategy led to many of the Texas policies now being challenged. Specifically, the Texas law requires clinics to meet the state’s “ambulatory surgical center” standard and requires that doctors performing abortions have admitting privileges at a nearby hospital. Neither is a frontal assault against the rights of individual women and, as Texas argues, both make the women in those clinics safer in the event of a medical emergency. On its face, the state’s interest in protecting women would appear to fall well within the shadow of authority left to it in Roe v. Wade and Casey.
However, the same assertion makes pro-choice advocates seethe. According to them, the rationale is a thinly veiled front for the true goal of imposing such strict regulations that most clinics across the state will need to shut their doors. The domino effect would limit the availability of services and place substantial burdens on many Texas women seeking an abortion.
Regardless of outcome, the Supreme Court’s ruling next June is destined to stoke a fire that has raged for decades. Throw in the politics of a presidential election, and that fire seems ready to explode.
Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.
