The room was packed for a show. We shifted in our seats in nervous anticipation as we waited for nine of the most powerful people in the world to enter the room.
We immediately stood at the sound of the familiar buzzer. With little fanfare considering the momentous day, the justices entered. I craned my neck and cracked a smile as I watched Ruth Bader Ginsburg take her seat. It was time.
“We'll hear argument this morning in Case 15274, Whole Woman's Health v. Hellerstadt,” Chief Justice Roberts announced. Counsel approached the bench. “Mr. Chief Justice, and may it please the Court.”
Last week’s abortion case in the Supreme Court has been described by some as “bigger than the Super Bowl if you are an abortion advocate.” However, while 94 percent of Americans have an opinion on whether abortion should be legal, 85 percent have no idea the Supreme Court is considering a new abortion case. Grossly little attention has been paid to a case that has the potential to rewrite abortion rights in this country.
In the wake of the Planned Parenthood video controversy, abortion has been a ubiquitous news topic. Innumerable angry articles, editorials, newscasts, public statements and more have forced abortion back into the national spotlight.
Despite all this attention, there is a mismatch in our country when it comes to debate over abortion, with arguments in public discourse failing to translate to constitutional arguments in court cases. Outside of the courthouse, pro-life supporters brandish posters depicting bloodied fetuses as they scream about the need to protect fetal life. Pro-choice activists counter with the same fervor, insisting on prioritizing women’s bodily integrity above all else.
Though the cacophony outside is deafening, the court gives neither argument an ear.
In the years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the biggest abortion case since Roe, the Court looks at abortion cases as a balancing act between two, at times, oppositional forces. On the one hand, the Court has said that states have a legitimate interest in regulating abortion. On the other, the Court also says that women have a fundamental right to access the procedure. States may enact restrictions in order to promote women’s health as long as any resulting burdens are not “undue.” However, if the restrictions impose a substantial obstacle on a woman’s ability to access an abortion, an undue burden, then the regulations are unconstitutional. As a result, debate in the courtroom centers on whether abortion restrictions promote or hinder women’s health. Bloodied fetuses and women’s autonomy rarely enter the realm of constitutional litigation.
Whole Woman’s Health v. Hellerstedt, argued before the Supreme Court last Wednesday, was no exception. In 2013, the Texas legislature passed a law requiring abortion clinics to meet two stringent requirements in the name of protecting women’s health. The first was that clinics must meet the standards of “ambulatory surgical centers.” Among the many changes that particular regulation would impose, clinics would be forced to close if their hallways and elevators were not of a certain width. The second regulation requires that doctors at abortion clinics have admitting privileges at local hospitals in case of complications. Having “admitting privileges” requires that abortion doctors are part of the hospital staff in order to provide specific medical treatment.
Lawyers representing Texas argued last Wednesday that these regulations are to ensure women’s health and protect women from the scourge of dangerous clinics. Whole Woman’s Health, the organization suing Texas, argues that the restrictions are really just part of a well-orchestrated strategy to decimate the right to abortion the Supreme Court enshrined in Roe. Whole Woman’s Health has a point: the Texas law has the potential to cut the number of Texas abortion clinics from 41 down to 10.
The justices spent nearly an hour and a half debating the merits of the Texas law. All eyes were on Kennedy, the Court’s most moderate justice, who will likely decide the outcome of this case. The four liberal justices – Ginsburg, Sotomayor, Kagan, and Breyer – ripped into Texas’ defense of the law, their tone even mocking at times. The Court’s more conservative justices tried to call into question the law’s relationship to closing clinics. Oral argument was full of underhanded jabs, savage rebuttals, and Kennedy’s sad and desperate attempts to remand the case to delay judgment. We were promised a Super Bowl, and the Court delivered.
Though we should all be paying attention to major Supreme Court cases, even if just for pure entertainment value, our attention is even more critical when the Supreme Court is practically the sole body responsible for abortion rights in our country. The Supreme Court established the right to abortion in Roe. The Court narrowed that right in Casey. Later cases determined the scope of constitutional restrictions on the procedure. The Supreme Court is the reason women have a right to choose.
Just as easily as the Supreme Court established the right to abortion, the outcome of Whole Woman’s Health could decimate that right. If the Court were to uphold Texas’ restrictions, states could essentially regulate abortion clinics to death. The right to choose would exist for women lucky enough to live near the few clinics that would remain.
Paying attention to the Court is important not only because it has the final word on abortion rights, but also because understanding the constitutional arguments behind abortion is critical in shaping public discourse. Until the public and the courts are part of the same debate instead of arguing past each other, abortion will continue to be the Pandora’s Box of politics.
Dana Raphael is a Trinity junior. Her column runs on alternate Mondays.
Get The Chronicle straight to your inbox
Signup for our weekly newsletter. Cancel at any time.