There was good news on Friday morning for supporters of abortion rights and those who wish to prevent them. The Supreme Court’s justices appeared confused over how to enforce strict federal regulations that criminalize abortions under certain circumstances. The court is poised to decide whether the regulations should apply as it decides whether Texas violated the Constitution in restricting access to certain abortion providers.
The possibility that the court will rule in favor of abortion rights—by striking down one of the most restrictive abortion laws in the nation—is not a welcome development, but it’s better than the alternative. That alternative would have been a narrow ruling that determined that the regulations did not violate the Constitution. Overturning the Texas regulations would have put at risk other restrictive laws pending in other states and prolonged the divisive debate over abortion in America.
The atmosphere on the court was tenuous on Friday, with Justice Neil Gorsuch (who was appointed by President Donald Trump) casting the crucial vote to preserve Texas’s 2011 law. He held that the state’s choice to prohibit abortion except in the cases of rape, incest, and to save the life of the mother was a clear exercise of the state’s power to regulate abortion. He also questioned why the justices should return the issue to the Texas Legislature to address concerns over whether the regulations imposed an undue burden on women seeking abortions.
Justice Ruth Bader Ginsburg was unpersuaded. In a long, passionate argument that had her colleagues on the bench shaking their heads, she spoke of Texas’s public debate over the 2009 passage of the law that regulates abortion clinics as if they were medical facilities. Following the law, she said, “Every woman has an expectation that before she makes a decision like that, she’s going to know where to go for assistance.”
She also objected to the court trying to fix on the narrow issue of the intrusion of state regulations on abortion providers. The provisions of the law that outlaw abortions after 20 weeks’ gestation, she said, “target women. They tell women, ‘You’re not allowed to do this, and if you do it, you’re a criminal.’”
(Justice Stephen Breyer, who had participated in oral arguments last week, said he believed the Texas restrictions raised important constitutional issues concerning both the individual freedom of choice and the health needs of women. They require physicians who provide abortions to have admitting privileges at a nearby hospital and are thus akin to pre-existing regulations to ensure that women can reach hospitals quickly in emergencies.)
But in a compromise, Justice Stephen Breyer suggested allowing abortion facilities in Texas to remain open, while halting Texas’s decision to open its own abortion clinics. The compromise plan, he said, would allow for both “individual freedom and reasonable regulation” regarding abortion, although he noted that the court would have to rely on the “silence” of the two Texas attorneys to see if there was support for it.
The question at the heart of the dispute now is whether the court will allow Texas to proceed with its law to restrict access to abortion. If Justice Kennedy decides that it is too premature to rule on the matter, oral arguments on the Texas regulations are likely to continue for weeks. But if there is a ruling, it will be the third decision of the court’s term that struck down a state law restricting abortion.
While the court may have taken a major step backward for abortion on Friday, it would be wrong to interpret the Texas debate as a lost cause. Much can happen to open the door to better access to abortion in a short period of time, especially in states with powerful pro-life delegations.