The underlying reality of the “abortion wars” over the last four decades has been that the constitutional status quo requires a “right to choose” within much-debated and occasionally eroded boundaries for state intervention. Indeed, until recently many reproductive rights advocates have been reluctant to litigate state legislation designed to harass providers and their patients on grounds that it might give a shaky Supreme Court the opportunity to do more damage to the basic constitutional framework.
With yesterday’s Fifth Circuit Court of Appeals action overturning a district court judge’s “stay” on implementation of Texas’ sweeping new anti-abortion law, the status quo may have decisively begun to shift. With a major closure of abortion clinics in Texas–which may spread elsewhere if similar state laws escape judicial restraint–not only is a SCOTUS review of the reigning constitutional law inevitable, but is now essential for pro-choicers.
The alarming thing is that the Fifth Circuit ruling indicates states will be allowed to drive large trucks through the loophole created by Justice Kennedy in the Carhart v. Gonzales decision (the one that upheld the federal “partial-birth abortion” law) giving lawmakers leeway to restrict abortion opportunities on broadly paternalistic “health of the mother” grounds. Kennedy effectively inverted the original meaning of the Court’s insistence on a “health exception” to late-term abortion restrictions, and raised fears that states would see the handwriting on the wall and justify additional restrictions on Father Knows Best grounds dishonestly framed as solicitude for the health and safety of women seeking abortions.
Buttressed by their 2010 state-level landslide, Republicans are now rising–or falling–to the occasion, with remarkably little internal dissension. And so now we will soon find out if the judicial dike that has for so long held back a tide of attacks on the right to choose will stand or crumble.