Friday January 22 marks the 43rd anniversary of the landmark decision for women’s reproductive rights, Roe v. Wade. On March 2, the Supreme Court will hear oral argument on Whole Woman’s Health v. Cole, where abortion rights advocates are challenging regulatory restrictions on abortion clinics and doctors that would leave just ten clinics available for the 5.4 million Texas women of reproductive age. The question in the case is whether the restrictions place an “undue burden” on the constitutional right of women to have an abortion. What shocks me and other liberals is that this case is being heard over four decades after a decision that changed the lives and prospects of many women. And sadly, we have come full circle – The Texas regulations at issue here essentially operate as a complete ban on abortion in that state. Norma McCorvey (aka “Jane Roe”) brought her case to the Supreme Court because she couldn’t get an abortion in Texas in 1969. If this case goes the wrong way, Norma McCorvey’s fate will befall many Texas women in 2016.
This is the latest set of rules and regulations in the anti-abortion “incrementalist” strategy that arose in the ‘80s and ‘90s after conservatives spent over a decade unsuccessfully trying to reverse Roe. Incrementalists have been chipping away at the right for years. First it was waiting periods and permissions, then it was the requirement that certain information about the pregnancy be given to the woman. The latest wave has been restrictions on doctors and clinics in the name of “women’s health.” An irony if there ever was one, particularly from small-government Republicans, who, in any other sphere, would be fighting to have regulations lifted, not imposed.
A “friend of the court” brief filed in Cole by 113 attorneys who have shared their personal stories with the court explain that their decision, as difficult and terrible as it was, allowed them to control their reproductive lives, and fully participate in the “economic and social life of the nation” – words lifted from Justice Kennedy’s opinion in Planned Parenthood v. Casey, from which the “undue burden” standard arose.
In light of Cole, this Friday is a depressing anniversary of a decision that changed the lives and economic prospects of many women. I’m hopeful that the Court will halt incrementalism in its tracks and strike down the Texas law as an undue burden on an important and fundamental constitutional right, and not return us to Norma McCorvey’s bleak summer of 1969.