A guest post by Joshua C. Wilson, author of The Street Politics of Abortion.
While the nation’s attention has been captured the dramatic display of abortion politics in Texas, the Supreme Court’s recently announced reentry into the same field has failed to have comparable draw. The Court’s decision to hear McCullen v. Coakley, a case challenging the constitutionality of Massachusetts’s clinic buffer-zone law, is, however, no less politically illustrative and important.
Together, the Court’s overlooked action and Texas’s spectacle encapsulate the past, present, and potential future of abortion politics.
The 1st Circuit Court makes it clear in their McCullen decision that they think the constitutionality of the Massachusetts act is quite settled, and that those challenging the law are engaged in a Sisyphean effort. The lawyers representing Ms. McCullen and her follow antiabortion activists, however, have good reason to push this case to the US Supreme Court.
As clinic-front antiabortion protests grew in frequency and intensity in the 1980s and 90s, abortion providers and their supporters responded by securing injunctions, and eventually laws like the one disputed in McCullen. The nation’s high court has upheld a significant number of such regulations during that same timespan. The most relevant of these cases, both in terms of the law and politics of McCullen, is Hill v. Colorado (2000).
In Hill, the Court considered the constitutionality of Colorado’s “Bubble Bill”—a law governing activism in front of the state’s healthcare facilities. The Court upheld the Bubble Bill in full, affirming the basic tool that effectively ended the most significant displays of clinic-front antiabortion activism nationwide.
One of the points at issue in McCullen is whether Hill should be limited or directly overruled. Looking back to the Hill majority, Justices Rehnquist, Stevens, O’Connor, and Souter have since left the
Court, and only Justices Ginsburg and Breyer remain. All three of Hill’s dissenting Justices, however, are still on the bench. These Justices have been joined by at least two others—Chief Justice Roberts and Associate Justice Alito—who are likely to see Hill, and thus McCullen, in a similar light. Suddenly the lawyers challenging the Massachusetts law do not look so misguided.
That said, why litigate on behalf of a largely abandoned direct action strategy? This is where the recent events in Texas become illustrative of the present and the potential future of abortion politics.
The regulation of direct action tactics may have effectively eliminated major clinic-front antiabortion activism, but it did not do away with the antiabortion movement itself. Rather, the movement learned from and responded to these measures by internalizing the value of controlling the surrounding law. Antiabortion activists have correspondingly relocated the main abortion politics battlefield from the visible, participatory, and volatile streets to the more private, elite, and (excepting the Texas’s “People’s
Filibuster”) staid state legislative halls.
State legislatures have been chipping away at abortion access for decades, but they have become more aggressive in recent years. The bill at issue in Texas is an amalgamation of recent approaches taken by antiabortion activists and friendly state legislatures. It contains a prohibition on abortions after 20 weeks, mandates that abortion clinics meet surgical center regulatory standards, and requires doctors who perform abortions to have admitting privileges at hospitals within 30 miles of the clinic. The bill’s
opponents argue that these requirements will cause 37 of the state’s 42 clinics to close.
While it took a significant physical and mental effort by one Senator to defeat the Texas bill, the victory
is likely temporary. Texas’s bill returns in this week’s special legislative session and will in all likelihood shortly become law. What’s more, Texas is hardly alone in proposing and passing such bills. In fact, some of the recently law’s enacted by similarly minded state legislators intentionally conflict with current Supreme Court rulings in order to provoke the Court into reconsidering abortion’s absolute or effective legality. When they do, the social conservative advocacy networks that organize to push for such abortion bills, and that bring challenges to regulations like those seen in McCullen, will be ready to assist these states.
This is the current state and form of abortion politics. If the petitioners are successful in McCullen there is no reason to think that the state-level legislative tactics exemplified by Texas’s current events will diminish. The form of abortion politics may, however, still change. When laws like the one disputed in McCullen spread across the country decades ago, ground level antiabortion activists were demobilized by the fear of hefty fines, bankruptcy, and potential imprisonment. While other factors contributed to the decline of the street politics of abortion, any unraveling of the cases upholding protest regulations lowers the barriers to revitalizing clinic front direct action strategies. If revived, the antiabortion movement will, for the first time, be able to combine the impressive legislative and judicial political power that it has developed with a complementary popular street politics of abortion.
Joshua C. Wilson is an Assistant Professor of Political Science at the University of Denver. He is the author of “The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars.”
