Politicians and lawyers argue on a daily basis. There are no shortages of issues and disagreements. None of those are as vast and passionate as the abortion laws and regulations. Lawmakers rely on current laws, past court decisions, U.S. Supreme Court rulings, and popular opinions to determine how they will vote on any given legislation.

Abortion laws require more concentration than most issues because it has, at its center, two possible victims, the mother, and child. The Supreme Court restricted each state’s policy-making ability with Roe vs. Wade. But recent state laws have sought to derail those guidelines by defining certain factors, most popular is the viability of life. This sample analytical essay explores how Texas argues its response to House Bill 2, the nation’s grasp of what constitutes and person and who deserves to be protected will be put to the test. 

Texas restricts access to abortions with House Bill 2

Many may question what all the fuss is about. It started with Texas House Bill 2, also called Texas Senate Bill 5. The proposed legislation details measures that would add and update abortion regulations, including several controversial bans (Texas Legislature). These measures include a ban on abortion at 20 weeks post-fertilization and recognize that the state has a compelling interest to protect fetuses from pain (Texas Legislature). It also mandates doctors who performs abortions have admitting privileges at a nearby hospital (Texas Legislature and Becca and Aaronson).

The most controversial aspect of the law requires clinics meet the same standards as other surgical health-care facilities in the state, including emergency rooms (Texas Legislature). The approved legislation includes a provision requiring oversight of women taking abortion-inducing drugs such as RU-486 (Texas Legislatur). Opponents say the bill goes too far and prevents women from exercising their constitutional rights to an abortion.

The U.S. Supreme Court ruling

District Judge Lee Yeakel struck down House Bill 2 deeming it as unconstitutional and prevented the law from coming into effect on September 1, 2014 (Hurley and Ura). After filing lengthy appeals and storms of public protests, the Supreme Court agreed to hear the case March 2016 (Hurley and Ura). During this time, it is noteworthy to include Justice Antonin Scalia had recently died and Justice Anthony Kennedy, the usual swing-vote, was riding the fence (Hurley and Ura). In other words, the Supreme Court was entering the debate with a divided 4-4 opinion rate (Hurley, Ura and Alliance for Justice). 

During the hearing, conservative justices questioned the role restrictions would play in closing dozens of clinics (Hurley and Ura). They were concerned if abortion providers could prove that two provisions in the law can be blamed for leaving the state with fewer clinics, thus limiting women's access to rightful abortions (Hurley and Ura). Liberal justices pressed wanted to know if the medical justifications cited for passing the abortion restrictions were absolutely necessary (Hurley and Ura). Justice Sonya Sotomayor brought attention to the fact there must be a way to preserve life and health without closing the clinics (Hurley and Ura).

Major players: History of abortion cases in the U.S.

During the early 1970s, two high-profile abortion cases from Texas was brought before the Supreme Court (Pew Research Center). The Court agreed to hear the two cases challenging laws that restricted abortion as unfair, discriminatory, and unconstitutional. Roe v. Wade, registered in 1973, challenged the Texas law making abortion illegal in all cases except those in which the life of the mother was at risk (Pew Research Center). Doe v. Bolton, also filed in 1973 listed a Georgia law allowing women to terminate a pregnancy when either her life or her health was in danger (Pew Research Center). Lower federal courts had declared both statutes unconstitutional and ruled women had the right to decide whether to carry a pregnancy to term, not the states (Pew Research Center).

The Supreme Court ruled in the favor of both women, setting the groundwork for one of the most dramatic legal battles in the U.S. During the ruling, the Justices struck down the laws in a vote of 7-2, taking a more logical and rational approach to abortion (Pew Research Center). Justice Harry Blackmun wrote in his opinion that while ‘the Constitution does not explicitly mention any right to privacy,’ a number of prior decisions had found ‘a guarantee of certain areas or zones of privacy” (Pew Research Center). Blackman’s opinion included the formula used today to determine whether abortions are legal or illegal. His guidelines are divided into three tiers (Pew Research Center and Guttmacher Institute):

• Tier 1 – First Trimester: State has no real interest in protecting mother’s health and can only require basic health safeguards but cannot limit access to abortion.
• Tier 2 –End of First Trimester to Point of Fetal Viability: State has interest in protecting mother’s health and can regulate abortion only to protect health of mother.
• Tier 3 – After Point of Fetal Viability: State has interest in protecting “potential life” of unborn child and can restrict or even ban abortion as long as procedure still allowed when mother’s life or health at risk.

Webster v. Reproductive Health Services

Roe vs Wade did not solve the abortion debate. States still passed laws to restrict access to abortion, such as the recent Oklahoma legislation. Roe vs. Wade produced scores of legal debates, most surrounding the beginning of life. The first ruling to unravel Roe vs. Wade came from a high-profile case in 1989 (Pew Research Center). Webster v. Reproductive Health Services questioned Missouri’s statute barring public facilities from being used to conduct abortions and prohibited public health workers from performing abortions unless the life of the mother was at risk (Pew Research Center). The new law also defined life as beginning at conception and required physicians to perform fetal viability tests on women who were 20 or more week’s pregnant (Pew Research Center). The Supreme Court ruled 5-4 in favor of the state’s law, and Chief Justice William Rehnquist wrote:

“The law’s declaration that life begins at conception does not contradict Roe because the declaration is contained in the statute’s preamble and thus should have no real impact on access to abortion” (Pew Research Center). 

Planned Parenthood of Southeastern Pennsylvania v. Casey

Even more recently, the mostly conservative Supreme Court has upheld additional state bans restricting certain abortions and scenarios. The 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey set the stage for even more restrictions on women seeking abortions (Pew Research Center). Casey challenged abortion laws requiring informed-consent and a 24-hour waiting period for women seeking abortions (Pew Research Center). The law also required minors to seek permission from their parents and wives to inform their husbands or the child’s father (Pew Research Center). The Supreme Court struck down the las but made drastic changes to the Tier System developed in Roe vs. Wade (Pew Research Center). They allowed states to regulate abortion during the entire period before fetal viability and for reasons other than to protect the health of the mother (Pew Research Center). 

Concluding thoughts about the Texas restrictive abortion bill

Legal experts debate whether Texas House Bill 2 will set the stage for new, more restrictive abortion laws or if the Supreme Court will strike down the law and reassert its Roe vs. Wade opinion. This fight also is evident in the several thousand petitions the court received, taking one side of the coin or the other. Yet, the Supreme Court hasn’t shown any signs of rectifying this case. The best scenario is the Court will not be able to come to an easy decision and will tie, leaving the immediate lower court’s ruling in place.

Works Cited

Alliance for Justice. In Their Words: The Supreme Court Justices on Abortion. 8 Jan. 2014. Web. 14 April 2016. http://www.afj.org/wp-content/uploads/2014/01/SCOTUS-Abortion-Record s.pdf.

Guttmacher Institute. “An Overview of Abortion Laws.” State Laws and Policies. 1 April 2016. Web. 14 April 2016. https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.

Hurley, Lawrence. “Texas abortion case goes before shorthanded U.S. Supreme Court.” Reuters. 2 Mar. 2016. Web. 14 April 2016. http://www.reuters.com/article/usa-court-abortion-idUSL2N169278.

Pew Research Center. “A History of Key Abortion Rulings of the U.S. Supreme Court.” 16 Jan. 2013. Web. 13 April 2016. http://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/.

Smith, Morgan and Becca Aaronson. “Abortion Bill Finally Passes Texas Legislature.” 13 July 2013. Web. 14 April 2016. https://www.texastribune.org/2013/07/13/texas-abortion-regulations-debate-nears-climax/.

Texas Legislature. “House Research Organization Bill Analysis: Senate Bill 5.” Senate Journal Online. 23 June 2013. Web. 14 April 2016. http://www.hro.house.state.tx.us/pdf/ba831/sb0005.pdf#navpanes=0.

Ura, Alexa. “Supreme Court Hears Arguments on Abortion Restrictions.” The Texas Tribune. 2 Mar. 2016. Web. 14 April 2016. https://www.texastribune.org/2016/03/02/supreme-court-hear-arguments-texas-abortion-law/.