What's Next for Abortion Law?

by Mary Ziegler

Mary Ziegler the Stearns Weaver Miller Professor at Florida State University College of Law. She specializes in the legal history of reproduction, the family, sexuality, and the Constitution. She is author of three books on the history of the abortion debate, most recently Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

The Supreme Court’s recent decision in June Medical Services v. Russo surprised many observers anticipating a decisive step in dismantling Roe v. Wade. The case questioned the constitutionality of a Louisiana law that required abortion providers to have admitting privileges at a hospital within thirty miles of a clinic. The Court had already struck down an identical Texas law four years earlier, but Louisiana still expected to win, no doubt thanks to the Court’s new conservative majority. The state even asked the Court to undo decades’ worth of precedent in its argument that abortion providers should not be able to bring a constitutional challenge on behalf of their patients.

But in the end, Chief Justice John Roberts sided with his liberal colleagues in invalidating the law and reaffirming that abortion doctors can challenge others like it. His concurring opinion reads like a love letter to stare decisis, the doctrine requiring the Court to honor its own precedents. Some predicted that regardless of what Roberts thought about abortion rights, he might save Roe because of his fidelity to precedent.

Now June Medical no longer looks like much of a win for abortion rights at all. Lower courts and lawmakers have begun taking a second look at restrictions that had already been blocked. No one is sure that the Supreme Court will do anything to stop them.

Where are the U.S. abortion wars likely to go next? The only way to understand what the most recent opinion means for Roe v. Wade is to look further back in time. Like the abortion restrictions it will almost inevitably inspire, June Medical fits into an ongoing and long-term strategy to unravel abortion rights, a strategy that has sharpened our cultural divide on reproductive health.

The claims made in the U.S. abortion struggle often seem to reflect “the clash of absolutes” famously described by legal scholar Laurence Tribe in his 1990 book of that name. Supporters of legal abortion fight for a right to choose while abortion foes defend a right to life for the unborn child. These arguments seem to reflect what legal theorist Ronald Dworkin called “rights as trumps”—constitutional protections that prevail over other policy considerations or even the preference of voters.

One might be tempted to describe the impasse we face today as arising because those on each side of the abortion debate believe that they defend a right that outweighs any competing concern. To be sure, such rights-based arguments remain an important part of the discussion. But in recent decades, the core terms of the legal debate about abortion in the United States have changed in ways we have rarely appreciated. Between 1973 and 2019 the conflict has centered not so much on laws criminalizing abortion outright as on the quest for incremental restrictions designed to undermine Roe v. Wade. And with this change in emphasis, the struggle has increasingly turned not only on rights-based trumps but also on claims about the policy costs and benefits of abortion for women, families, and the larger society.

Read entire article at Boston Review