Humanists have long been aware of attempts by the religious right to chip away at women’s access to abortion. Since the US Supreme Court decision in Roe v. Wade in 1973, which granted women the right to abortion, conservative attempts—often spearheaded by Catholics and evangelical Christians—have fought to make abortion and other forms of reproductive healthcare inaccessible, even if they’re still technically legal. Often, these measures come through TRAP laws (Targeted Regulation of Abortion Providers) that place extreme and unnecessary restrictions on clinics offering abortion services. Clinics that are unable to comply with these onerous laws are forced to close, meaning that women often must travel long distances to reach a clinic where they can access the abortion care they need. These burdens make abortion difficult for all women to access, but they also disproportionately affect working-class women and women of color. The religious underpinnings of many of these laws, such as the belief in a soul that enters the zygote at conception and gives it “personhood,” also muddy the lines between church and state. For these reasons, many humanists have long opposed abortion restrictions and fought to uphold Roe v. Wade.
Now abortion access is facing a challenge in the Supreme Court that could strike even bigger blows to women’s rights. On Wednesday, March 2, the court heard arguments for the case, Whole Woman’s Health v. Hellerstedt. In question in the case is a Texas law, HB 2, passed in 2013, which forced half of the state’s abortion clinics to close. The law demands that abortions only be performed in ambulatory surgical centers and that doctors performing abortions have admitting privileges at nearby hospitals. While these restrictions have ostensibly been put in place for the sake of women’s health, numerous medical organizations, such as the American College of Obstetricians and Gynecologists, insist that these restrictions are completely unnecessary to ensure that abortions are performed safely. Rather, the clinic Whole Woman’s Health claims that these restrictions place an undue burden on women who need abortion care. Though these restrictions do not outright deny women their right to have abortions, they effectively make abortion inaccessible for many women. Depending on how the Supreme Court rules, HB 2 could be overturned and many clinics in Texas could continue providing vital abortion care. However, the court could also uphold HB 2, in which case abortion clinics in Texas, as well as across the country, could place even more arduous restrictions on clinics, essentially putting abortion out of the reach of many women without making it illegal.
Given Justice Antonin Scalia’s death, the judge whose opinion may decide the case could be Justice Anthony Kennedy. But during the oral arguments, the three women on the court took center stage. Justice Elena Kagan clearly cut through spurious arguments that HB 2 was unrelated to the closing of a dozen Texas clinics, and she also observed that liposuction causes far more complications than abortion but is considerably less regulated. Justice Sonya Sotomayor astutely noted the double standards for reproductive healthcare created by HB 2, which allows a procedure called dilation and curettage to be used for miscarriages performed in a doctor’s office but requires the same procedure to be performed in outpatient surgery centers when used for abortions. And Justice Ruth Bader Ginsburg got right to the heart of the case when she said outright that “a woman has a fundamental right to make this choice for herself.”
In their bold lines of questioning, Justices Kagan, Sotomayor, and Ginsburg demonstrated why diversity on the Supreme Court matters so much. The laws of our nation and the interpretation of our Constitution are not merely mental exercises in theoretical ideas about life, liberty, and the pursuit of happiness. They have real, tangible, and practical effects on the lived experiences of individuals. For historically disadvantaged Americans, such as women, people of color, and the working class, our laws and their application have significant impact, and through the questions they posed, the three women justices were clearly thinking through the effects their decision would have on women’s lives and access to reproductive healthcare. The court’s ruling hasn’t yet been announced (a Slate article posits that it might be sent back to Texas on remand), but having three sharp women on the US Supreme Court who are aware of the real need that women have for reproductive healthcare and abortions will undoubtedly play a role in whatever the court ultimately decides.
Thinking beyond Whole Woman’s Health v. Hellerstedt, humanists would do well to consider how the next nominee to the US Supreme Court will affect abortion rights, as well as a whole host of other important issues to the humanist community such as church/state separation and LGBTQ rights, among others. With Senate Majority Leader Mitch McConnell insisting that he will not even consider President Obama’s nominee to take Justice Scalia’s place, humanists should be thinking seriously about our upcoming presidential election not just in terms of who we think would be the best leader of our country but also in terms of how that leader’s choices may affect who sits on the Supreme Court. If we are serious about upholding our freedoms, including women’s right to accessible abortions and the right to separation of church and state, then we should consider how we can ensure that those freedoms endure beyond the court’s decision in just this particular case.