How The SCOTUS Was Right About Texas Abortion Regulations

On June 27 The Supreme Court of the United States ruled against a Texas abortion regulation bill. At least in some important ways, I think the Supreme Court was right. Further, the striking down of this bill is no great loss and it would not do the good people of Texas any good to defy the SCOTUS in regards to the enforcement of this bill.

Texas House Bill 2 was a bill that had two primary provisions. First, the bill required all abortionists to have admittance privileges in a hospital no greater than 30 miles from the abortion clinic. Second, HB 2 sought to require all abortion clinics to meet the Texas Health and Safety Codes for ambulatory surgical centers.

The principal reason why the SCOTUS struck this bill down was because they viewed this bill as in conflict with the Casey vs Planned Parenthood decision. They saw these regulations as putting a substantial obstacle in the path of women seeking an abortion and putting an undue burden on abortion access.

The reason why I think the SCOTUS was at least partially correct was because HB 2 was intentionally designed to restrict abortion access. That is widely known. Although major pro life organizations will stubbornly insist in their public broadcasts that HB 2 is only about women’s health, the bill is clearly designed to restrict abortion access while slipping under SCOTUS precedence. The majority opinion writers of the SCOTUS saw through the thinly veiled attempt to restrict abortions and they made their decision largely based on the true intent of the bill. And they aren’t wrong about that. The bill truly isn’t about women’s health no matter the rhetoric that institutional pro life organizations spout. It’s not a coincidence that major pro life groups lobbied for HB 2. Pro life celebrity and long time supporter of incremental regulationism Troy Newman, President of Operation Rescue, states that,

“Today’s Supreme Court ruling has essentially relegated women to second-class citizens when it comes to abortion by allowing abortionists to evade meeting basic safety standards that are proven to save lives...We must remember why these safety rules were enacted. When abortion facilities are exempt from meeting safety standards, conditions and practices deteriorate and women are placed in jeopardy.”

Needless to say, the SCOTUS didn’t buy the charade. Given that HB 2 sought to circumvent Casey v Planned Parenthood and given that HB 2 did nothing to challenge Roe v Wade, I understand the reasoning of the majority opinion. Technically, I even agree with it. I don’t want to give any undue credit. The majority opinion was written by depraved hands from wicked hearts. But they’re not wrong about the intent of HB 2. Even with the good intentions of HB 2, Casey v Planned Parenthood cannot be effectively challenged while Roe v Wade remains untouched. At best HB 2 accidently challenges Casey v Parenthood, but there isn’t any realistic way that we can regulate abortion out of states like Texas while Roe v Wade is still precedence. This is why regulationist tactics designed to fly under the radar will not be effective. It’s time to be done with the charades and game playing.

How did the three dissenting Justice’s respond? Their primary problems with the majority opinion had little to do with with lives of the unborn. They largely made their case by arguing that the majority opinion did not abide by certain standard rules that the SCOTUS should apparently abide by. I, to be frank, do not know if these are legitimate breaches of protocol, but I certainly would not be surprised by any unethical behavior. Even so, it's not exactly encouraging that the best these conservative Justices had only amounted to being upset about breaking certain procedural rules.   

But surely restricting abortion rights is a good thing and a thing that all of us should get behind? Yes and no.

Yes, we should do what we can to reduce abortion in whatever ways we can while not hindering our ability to abolish it once and for all. This could mean doing many things, both culturally and politically, that does not betray the principles and ideas that we are ultimately standing on. Abortion is murder. Murder is sin. Murder demands justice. Sinful humans need the Gospel. By supporting legislation that could effectively end with “and then you can kill the baby”, we betray all of those principles.  

No, I am not convinced that HB 2 would significantly reduce abortions or abortion access. Ironically, the dissenting opinions help make this case. In an attempt to prove that HB 2 is within the bounds of Casey vs Planned Parenthood, Justices Roberts, Thomas, and Alito made the case that HB 2 isn’t and wouldn’t be effective in its true intention of reducing abortion access in Texas by referring to the previous district case upholding the admittance requirement of HB 2. We also need to look at these types of bills through a long term economic lens. Planned Parenthood is closing many tiny strip mall style non-surgical clinics, and small locally owned clinics are also closing. Although that sounds good at first, we should also understand that Planned Parenthood is opening up new state of the art megaclinics. Clinics that meet any and all of the Health and Safety codes required by pro life regulationist measures. It’s nice to celebrate the closing of so many privately owned and local “mom and pop” abortion clinics. However, the economic effect of forcing new and expensive standards closes down only certain types of clinics while regulations artificially drive the market to the infamously federally funded mega abortion provider, Planned Parenthood. This is the unintentional (perhaps) side effect of introducing regulations on ANY market. The big players reduce their competition and they simply meet the needed requirements, which after all, only make them appear to be more safety and consumer conscious. This is the same effect we see in many other markets.

In addition to examining the economic effect of regulating the abortion market, we can not forget our littlest neighbors. The sad fact is that abortifacient birth control methods and abortifacient emergency contraceptives are on the rise. Because of more advanced pregnancy tests and the over the counter availability of many of these chemicals, increasingly more of the abortion market is transferring to pills as opposed to surgeries. This is an often conveniently forgotten fact. The clear brutality of surgical abortions cannot blind us to the relatively non-graphic nature of the murders of the pre-implanted and early first trimester.  HB 2 does nothing for these Image Bearers of God, and this is exactly where the numbers are dramatically increasing.

HB 2 effectively tries to reduce abortions by making abortions safer. Rhetorically and legally this is not productive in the fight to abolish abortion. We should be bolding declaring that abortion is murder and sin before a holy and just God. To attempt to make abortion safer is to only reinforce the cultural presupposition that abortion is an acceptable medical procedure. We must understand that this fight is not only legal, this fight is spiritual and cultural. We cannot win the spiritual, and thus the cultural, fight by rhetorically beginning with the very same narrative that Roe v Wade established. When we seek to regulate abortion, as opposed to abolishing it, we cede the moral and rhetorical high ground. Like the Christian apologist dedicated to remaining neutral and proving the truth of God’s Word by outside evidences, pro life pragmatism and regulationism loses the fight before it has begun. Any and every regulationist bill that plays within the paradigm of Roe v Wade, as opposed to directly defying it, will naturally fail to overturn Roe v Wade.

The #SCOTUS decision against #Texas #abortion regulations was right. It's time to abandon incrementalism.—@johnandrewwords

What will defying the recent SCOTUS decision achieve? I want to defy those black robed and blood drenched tyrants as much as anyone, but we shouldn’t defy them just for the sake of defying them. We should defy the tyrant for the sake of justicenot for the sake of widening abortion clinic halls and driving the market to larger and nicer megaclinics. We should defy the tyrants for the sake of truthnot for the sake of pathetically limp wristed attempts to play ball in the Roe v Wade arena. Open defiance to the SCOTUS is not a small endeavor, and even though many Texas politicians openly endorse HB 2, I don’t blame them for not wanting to stick their neck out for such a pathetic and wretched piece of legislation.

For over forty long and bloody years, the pro life leaders, speakers, activists, and pastors have relied upon and advocated a strategy of voting Republican in order to nominate pro life Supreme Court Justices. Over the same amount of time, groups and organizations that may have started as good intentioned have become little more than lobbying groups and fundraisers for the GOP. The fruit of this failed strategy is apparent. Republican nominated Justices Anthony Kennedy and David Souter helped write the majority opinion in the Casey v Planned Parenthood case, and now Anthony Kennedy again sides with the majority. Although I am critical of HB 2, this still should serve as a clear indicator of the failure of this long and uncertain strategy. Instead of waiting on the courts for another forty years, the states should rise up in defiance of the wicked judges and nullify their reprehensible opinions.  Not only is nullifying unconstitutional and unlawful federal decrees a particularly American idea, any magistrate in the nation has the God given duty (not right, but duty) to uphold justice according to the Law of God.

This is the failure of typical pro life incrementalism. Although most pro lifers have good intentions, good intentions don’t get us very far. Just caring doesn’t matter. I do not want to be overly harsh, but if we intend to bring about the end of human abortion, we must submit ourselves to the Word of God and humbly repent of the faithless pragmatism of our fathers. We must think strategically and, most importantly, biblically about how we should fight mass injustice in our nation in our states. I am not suggesting that we should remain principled in spite of effectiveness. I am saying that remaining principled is effective. This is certainly political, but this is also very spiritual. I believe that if we remain faithful, God will bless that faithfulness. Thus far we are sowing regulation, and we are getting regulation. If that. If we sow abolition, I pray that God will bless our nation with abolition.


John Reasnor

John Reasnor is a Postmil Presuppositional Abolitionist and a professional technical writer. He is also a host of Cross & Crown Radio:

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