On Monday, Judge John Roberts joined his liberal colleagues in a 5-4 decision vote to overturn a Louisiana law requiring abortion doctors to admit privileges to a clinic within 30 miles. Most issued a scathing indictment from Louisiana lawmakers. Writing for plurality, Judge Stephen Breyer cited evidence that "opposition to abortion played an important role in some hospitals' decisions to deny admission privileges." But Roberts barely embraced the right to choose with his decisive deal with the majority. Instead, he emphasized that the Court had reversed an identical Texas law just four years ago, in Whole Woman & # 39; s Health v. Hellerstedt.
Roberts has argued that there are no Trump judges or Obama judges. He is concerned with keeping the Court above the political fray. His respect for precedents made the difference in his decision to block Louisiana's controversial law.
The question now: what's next for the anti-abortion movement? For decades, fetal rights have been surprisingly absent from the abortion wars. No one stopped talking about the right to life, but the main actors in the anti-abortion movement often turned to a different strategy: arguing that women had never benefited from abortion rights in the first place.
This strategy explains the law that the Supreme Court just revoked in June Medical Services v. Russo. Louisiana argued that admitting privileges protected patients against dangerous doctors and insisted that doctors should not have been able to sue under this law because abortion hurts women. But the arguments about protecting women do not end there. We have seen laws that say (inaccurately, according to many leading medical organizations) that abortion increases the risk of everything from suicidal ideation to psychological trauma and breast cancer.
The reasons for this change were clear. Some pro-lifers believed that abortion hurts women and wanted the world to know it. Some formed support groups like the American victims of abortion. But strategy certainly played an important role. A series of attacks on clinics and murders of doctors in the late 20th century convinced many that the enemies of abortion were anti-women. And the Court's landmark decision in Planned Parenthood v. Casey saved abortion rights because women could rely on abortion to achieve more equal citizenship. To undo abortion rights, the enemies of abortion believed, they would have to prove Casey wrong: abortion doesn't make women more equal; It makes them sick.
June Medical has just made it difficult to pass laws to protect women. And for this reason, the Court's decision is likely to supercharge a trend that is already too visible in abortion policy: a new focus on the rights of the fetus. Last year brought a wave of radical bans, all without exception for rape and incest. More incremental laws prohibit subsequent procedures or specific techniques. Some claim that they prevent fetal pain. Others focus on the uncomfortable details of abortion procedures. They all focus seamlessly on fetal life. And some laws seem especially likely to undermine efforts to paint the pro-life cause as a pro-woman.
Think about the lack of exceptions to rape and incest in recent abortion bans. Or watch a wave of recent laws that focus on the reasons women choose abortion, suggesting that some pregnancies end for racist, sexist, incapable, or trivial reasons.
A focus on fetal rights could make legally strategic sense. Defenders of life have twice lost in the Supreme Court by pushing a law that claims to protect women. The movement's most recent victory, by contrast, involved fetal life and subsequent abortions. Gonzales v. Carhart confirmed the federal "partial birth" abortion ban, arguing that lawmakers have more leeway when science is questioned. Enemies of abortion have tried to follow Gonzales' plan to ban abortion at 20 weeks and ban the most common second-trimester abortion procedure.
At its base, the anti-abortion movement has always focused more on unborn life; after all, most joined the movement to defend what they see as the fetus's right to life, not the need to protect women. Recently, many have completely abandoned the focus on women. Since last year, nine states have passed outright bans or bills prohibiting abortion early in pregnancy, and no exceptions for rape and incest.
But those who litigated June Medical and who are reading the decision understand closely that it will not be so easy to go beyond a woman protection approach. Enemies of abortion have long had to overcome an image against women, one forged in the years when attacks on abortion clinics (and the murder of abortion doctors) skyrocketed. Focusing on women presented a kinder, gentler image of a movement that was still struggling to win over the American public. And since the 1990s, sophisticated life supporters have believed that the only way Roe will fall is if Americans believe that women no longer want or need abortion rights. Anything less, such supporters of life believed, could produce a damaging backlash, or cause the Supreme Court to hesitate to get rid of abortion rights in the first place.
So after June Medical, a paradox confronts the anti-abortion movement. If the enemies of abortion still care about public opinion or victory in the Supreme Court, there is no way to hand over the arguments about women's rights to the opposition, but at least with this Supreme Court, there is no way to win either. with them.