On Monday, progressives had something else to cheer about, as Justice Kennedy once again joined Justices Breyer, Ginsburg, Kagan and Sotomayor—the liberal wing of the court—to allow 10 endangered Texas abortion clinics to remain open while the court decides whether to hear the full appeal. It was met with jubilation from abortion rights supporters who knew that, if this law had been allowed to go into effect, only nine abortion clinics would be left to service the more than five million Texas women of reproductive age. Allowing these clinics to stay open wasn’t just a progressive win; it was a life-saving order.
This move, coupled with their refusal to grant Mississippi’s request to allow them to close their clinic, all but ensures that the Supreme Court will take up abortion rights in their next term. They will likely grapple with whether TRAP laws—laws that single out abortion providers with onerous and unnecessary regulations in order to force them to close—are constitutional or if they do indeed pose an “undue burden” on women’s access to safe abortion care. Basically, the Supreme Court will likely rule on whether hostile states can close safe clinics or not. These implications are enormous.
Justice Kennedy gave a tiny bit of hope to abortion rights supporters in his decision for Obergefell v. Hodges when he said, “Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.”
Coming off on these spate of judicial wins, progressives are probably feeling more confident that the Supreme Court will simply follow this leftward trend and uphold the right to access safe abortion.
But we may very well be wrong.
While they may seem analogous, the issues of marriage equality and abortion have been on vastly different legislative trends. Just 11 years ago, Massachusetts became the first state to legalize same-sex marriage. Prior to The United States v. Windsor, which struck down the Defense of Marriage Act, same-sex marriage was only legal in 12 states. Prior to last week’s landmark ruling, same-sex marriage was legal in 37 states, and it is now legal nationwide. The tide has been moving quickly and steadily in one direction: marriage equality everywhere. The Supreme Court simply reiterated what everyone already knew.
On the other hand, even though abortion has been legal since 1973, you wouldn’t know it in certain zip codes. From 2010 to 2014, 231 abortion restrictions were enacted in state legislatures across the country. Fifty-one abortion restrictions have been enacted in the first six months of this year alone. The majority of American women now live in a state that is openly hostile to abortion rights. Safe clinics are evaporating before our eyes. The right to a safe and legal abortion isn’t just threatened; in some parts of the country, it’s rapidly becoming extinct.
In 1992’s Casey v. Planned Parenthood, the Supreme Court did uphold the constitutional right to an abortion, but it ruled that states can restrict abortion as long as they don’t place an “undue burden” on women seeking that care. This is precisely the standard that opened the anti-choice floodgates in 2010, with states enacting nearly 300 restrictions on abortion since then. In 2007, Justice Kennedy joined the four conservative justices in Carhart v. Gonzales to uphold the federal ban on an uncommon abortion procedure, a brutal judicial blow to abortion rights.
If anything, the trend for abortion rights at the Supreme Court is regressive. That’s a serious cause for concern.
The dramatic increase in public support for marriage equality likely played a role in the Supreme Court finally granting this civil right to same-sex couples. But while seven in ten Americans still believe abortion should be legal and more people identify as pro-choice than pro-life, the Supreme Court is still a relatively hostile place for abortion rights. While rights for gay and lesbian Americans have steadily increased in the Supreme Court, from ruling bans on sodomy unconstitutional in 2003 to now legalizing same-sex marriage nationwide, the opposite has happened for abortion.
While abortion and same-sex marriage are both about constitutional and human rights, they are culturally distinct. Same-sex marriage is framed as an issue of love, commitment and normalcy. Abortion, on the other hand, is about sexual activity, reproduction, and bodily autonomy. As The Nation columnist Katha Pollitt put it a few weeks ago, marriage equality is about love and abortion is about sex.
Marriage is about inclusion, about committing to your partner in a traditional, government-sanctioned way. Though many people have varying marital arrangements (not all marriages are monogamous), we think of marriage as a responsible, inevitable choice. The opposite is true for abortion. You can’t help who you love, but you can help whether or not you have sex, we think. Women who have abortions are framed as lazy, lascivious and irresponsible: “If you didn’t want to get pregnant, you shouldn’t have had sex.” We easily isolate women who have had abortions, rather than see ourselves in them.
Marriage is a public act; it is declaring your partnership and commitment to the government and the public. Abortion is the opposite of a public act. Abortion is, according to the Supreme Court, about privacy. It is about an individual woman’s right to privacy and personal bodily autonomy. As such, abortion then becomes an individualized issue, despite the fact that one in three women in America will have an abortion in her reproductive lifetime. It may be incredibly common, but abortion is relegated to the shadows. We don’t talk about abortion at the dinner table, but we do talk about our relationships and spouses.
It’s also worth noting the kinds of cases that liberals have been “winning” this term at the Supreme Court. Some of these cases were based on the flimsiest of terms, like the transparently cynical King v. Burwell that hoped four words taken out of context could unravel health care for millions of Americans. Some, like the squashed threat to the Fair Housing Act, were predicated on the wrongheaded assumption that systemic racism is over and therefore, discriminatory housing practices no longer exist. These are the kinds of the cases that the Supreme Court decided to take on. While it’s heartening to come out with a win in some of these critical cases, the bar has been set depressingly low.
For now, safe abortion clinics in Texas and Mississippi are still open. That’s worth celebrating. But just one day after the Supreme Court allowed those clinics to stay open, Governor Kasich signed Ohio’s budget into law, containing more egregious abortion restrictions designed to close safe clinics. This is a national crisis, one that will continue to wage until the Supreme Court either puts a stop to it, or abortion opponents close every safe clinic in America.
Lauren Rankin is a freelance writer, feminist activist, and board member of A is For, a non-profit organization dedicated to advancing women's reproductive rights. She has a Master of Arts in Women's and Gender Studies from Rutgers University.