43 years after Roe v. Wade, it's back to the Supreme Court to block a dangerous sham law out of Texas

Opponents of Roe figured out early on how to undermine the law rather than overturn it. And they're still at it

By Nancy Northup
Published January 26, 2016 12:57PM (EST)
 (AP/Eric Gay)
(AP/Eric Gay)

In 1986, as a first-year law student, I drove to Washington, D.C., to join the March for Women’s Lives. This was more than a decade after the U.S. Supreme court’s historic Roe v. Wade decision recognized a woman’s fundamental right to abortion, and that right was under attack from lawmakers around the country. Roe had been a profound and necessary victory, but for many of us it was also the beginning of a new, more complicated fight to make those protections real for every American.  

One month from now we’ll be taking that fight back to Washington and asking the Supreme Court to protect this essential right once again by blocking a dangerous sham law out of Texas. It’s worth noting, as we mark the 43rd anniversary of Roe, that in all those years the Supreme Court has repeatedly affirmed the fundamental right to access safe, legal abortion care. So why do we have to keep fighting for the same right that has been guaranteed for generations?

The opponents of Roe recognized early on that a right does not need to be overturned if it can be undermined. Just ask anyone who’s been unjustly denied a ballot, or any of the same-sex couples who showed up at the office of a Kentucky county clerk named Kim Davis. So when Roe became the law of the land, anti-choice politicians in statehouses around the country began to pass the sort of draconian restrictions we marched against in 1986.

Things came to a head in 1992, when the Supreme Court issued another historic ruling in Planned Parenthood v. Casey, a case argued and won by the lawyers who founded the Center for Reproductive Rights. At a time when the Bush administration was calling for the repeal of Roe, the Casey decision instead affirmed that decision’s essential holdings. It also established a standard rejecting as unconstitutional any law with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion,” and declared that “unnecessary health regulations” would not stand.

But lawmakers determined to regulate Roe out of existence were not deterred. Fast-forward to 2013, when Texas legislators passed an omnibus anti-choice law known as HB2 that singles out abortion providers for costly facility renovations and forces doctors who perform abortions to obtain admitting privileges at a nearby hospital. In order to skirt the standard established in Casey, the lawmakers sold HB2 on the fiction that it was intended to improve women’s health.

This deception is not terribly hard to see through. The American Medical Association and other leading medical, nursing and public health organizations have denounced HB2 as not only arbitrary, but likely to increase the risk of harm to women’s health. Earlier this month, those same medical and health experts were joined by the U.S. Department of Justice, legal scholars, business and faith leaders, and hundreds of others in “friend of the court” briefs condemning HB2 before the Supreme Court as a sham and a threat to the rule of law.

Moreover, some of the lawmakers who passed HB2 with a wink and a nudge have been perfectly clear about their ultimate objective. In July 2015, Texas state representative and HB2 author Jodie Laubenberg stated, “I am so proud that Texas always takes the lead in trying to turn back what started with Roe v. Wade.”

But if you want to know the truth, all you really have to do is take a look at the law’s impact. So far, HB2 has cut the number of abortion clinics in Texas by half and is poised to force all but 10 of the remaining clinics to close. Those will be mostly clustered in urban areas, leaving women in vast stretches of the state hundreds of miles from access to safe, legal abortion care.

So we’re going back to the Supreme Court next month, to continue a fight that began 43 years ago. The wrong decision would be catastrophic, but thankfully the right decision is also the same decision the Supreme Court has stood behind for 43 years, first in Roe and then in Casey: that our Constitution protects a woman’s right to make her own decisions about her health and family.

Nancy Northup is the president and CEO of the Center for Reproductive Rights.

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Abortion Aol_on Hb2 Planned Parenthood V. Casey Roe V. Wade Supreme Court Texas