What just happened?
On Friday the U.S. Supreme Court announced that in its 2020 term it will issue a ruling in June Medical Services v. Gee, the first case involving abortion since the court gained a conservative majority.
What is the case about?
In 2014 Louisiana passed a law requiring doctors who perform abortions in the state to have admitting privileges at a nearby hospital. Currently, there are four abortionists who work at the three abortion clinics in Louisiana. Because only one of the physicians has admitting privileges, the law would prohibit the other three from performing abortions unless they meet the requirement.
Opponents of the law claim it violates the precedent set in Planned Parenthood v. Casey that the states cannot put “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” The court struck down a similar Texas law about admitting privileges in the 2016 case Whole Woman’s Health v. Hellerstedt, claiming the restriction provided no health benefits for women seeking abortions.
Why is this case different?
A trial judge initially struck down the Louisiana law, saying it was similar to the state law in Texas that was prohibited by the Whole Woman’s Health decision. But a federal appeals court overturned the ban, saying the Louisiana law had better proof it did not violate the “undue burden” standard. Challengers of the law appealed to the Supreme Court, allowing the case to be considered once again.
The main difference, though, has less to do with the details of the case than with the composition of the court. When Whole Woman’s Health was decided the Supreme Court consisted of five pro-abortion justices. But the retirement of Justice Kennedy and the appointment of Justice Kavanaugh provides a situation in which there may be a shift on the court for allowing more restrictions on abortion.
Can the court use this case to overturn Roe v. Wade?
Technically, five justices could decide to use the case to overturn Roe or related abortion precedents. In reality, there is almost no chance of this case being the one that overthrows the abortion regime established by the Roe case. The prime holdout is likely to be Chief Justice Roberts. Many legal experts think Roberts is likely to believe overturning Roe during an election year would harm the trust the American people have in the court.
Indeed, there is no assurance Roberts will vote to uphold the Louisiana restriction. The chief justice has shown an aversion to overturning precedents, including recent precedents established while he was on the court. This means that even though Roberts voted against the decision in Whole Woman’s Health, he might still decide to treat it as binding precedent. (Earlier this year Roberts joined the four liberal justices in issuing a temporary stay prohibiting the Louisiana law from immediately going into effect after the federal court ruling.)
What would be the best outcome pro-lifers can reasonably expect?
While this case is not likely to lead to the overturning of Roe, it could provide an opportunity to undermine the effect of the unjust precedent. If the court weakens or overturns the “undue burden” standard it could open the gates for states to impose additional restrictions on abortion.
Contrary to what many Americans believe, overturning Roe would not ban abortion. Instead, it would merely allow the individual states to decide what laws about abortion should be put in place within their jurisdiction. Eliminating the “undue burden” standard, however, would have much the same effect. While the states could not impose an outright ban on abortion, lawmakers could continue to add restrictions that would make abortion within their states even less common.
How should Christians think about this news?
Scripture warns us, “Put not your trust in princes, in a son of man, in whom there is no salvation” (Ps. 146:3). Yet for the past 46 years pro-life Christians in American have put their trust in the Supreme Court to resolve the injustice of abortion. And for the past 46 years we’ve been frustrated and disappointed when the men and women we’ve trusted have failed to implement full justice for the unborn.
Waiting on the Supreme Court is not enough. Banning abortion in the United States requires convincing our fellow citizens—including too many of our misguided fellow believers—that killing children in the womb is a grave evil.
There are some hopeful signs we are making progress. A recent Gallup poll asked American whether they consider themselves to be pro-choice or pro-life. While slightly more men considered themselves pro-choice rather than pro-life (48 to 46 percent), a majority of women say they are pro-life (51 to 43 percent). Older Americans are also more likely to be pro-life, composing the majority of the age groups in the ranges of 30 to 49 (51 percent), 50 to 64 (54 percent), and 65 and older (56 percent).
Unfortunately, younger Americans identify as pro-choice by a margin of almost two to one (62 percent to 33 percent). A majority of college graduates (57 percent), liberals (76 percent), Democrats (66 percent), those who seldom or never attend religious service (62 percent), as well as those living in the East (52 percent), Midwest (50 percent), and West (50 percent) or in households earning at least $100,000 a year also consider themselves to be pro-choice on abortion.
While we should continue to fight in the courts and legislatures to end the horrific practice of abortion, our most important battle remains getting our neighbors to see how the gospel should change our attitude toward God’s most vulnerable children.