In its June 26 decision on freedom of speech, the U.S. Supreme Court ruled against a California law that forced pro-life pregnancy aid centers to tell pregnant women how to get an abortion.
This “forced speech” policy, making Americans facilitate what they recognize as the unjust taking of human life, was too extreme for the court’s perennial swing vote, Justice Anthony Kennedy. “Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” he wrote.
The scary thing is that four of the nine justices, led by Justice Stephen Breyer, embraced what Kennedy called a form of authoritarianism. They argued that since the law can require abortionists to tell women about the availability of prenatal care and adoption, “evenhandedness” demands that pro-life doctors can be forced to tell them how to have their children destroyed.
On the one hand, a caring professional who addresses the health needs of mother and child, morally committed to protecting both from harm. On the other hand, an abortionist who wants to make sure abortion is the only thing a pregnant woman ever hears about. According to the four dissenters, the court’s abortion jurisprudence requires us to treat these as identical cases.
In the court’s latest decision on abortion itself, in 2016, five justices led by Breyer invalidated a Texas law establishing safety regulations for abortion clinics. The law had required abortionists to have admitting privileges at a local hospital, in case their clients had complications, and to comply with safety regulations that already apply to other ambulatory surgical clinics.
In that case, the majority, including Kennedy, said these eminently sensible regulations were invalid because they would reduce easy access to abortion. Abortion was treated not only as something the law cannot prohibit, but as a positive good whose availability government must take care to ensure — even at potential risk to women’s lives.
Now the often-unpredictable Kennedy has announced his retirement. And the prospect that President Donald Trump may appoint someone less protective of the abortion industry has unleashed some wild charges.
On the TV program “The View,” Whoopi Goldberg and others decried the government’s interest in their, let us say, female body parts. In Time magazine, feminist author Jill Filipovic warned against a future of “unsafe” abortions (although unsafe abortions are what the court is protecting now) and extreme bans on birth control.
But what would happen if the Supreme Court gets a fifth justice who more consistently disagrees with the Roe v. Wade abortion decision?
In the unlikely event that Roe were reversed completely and all at once, the people and their elected representatives would again be allowed — not required, but allowed — to pass laws showing greater respect for the lives of unborn children. In the ensuing debate, everyone would have a voice — including Whoopi and her friends, who have bigger megaphones than most of us.
More likely, especially under the cautious tutelage of Chief Justice John Roberts, is a reasoned and gradual path away from Roe, beginning with its greatest excesses.
The first steps might include: upholding clinic regulations that protect women’s lives, even if they inconvenience the abortion industry; allowing laws supported by the great majority of Americans to forbid elective abortions after the fifth month of pregnancy, like laws already approved by several states and the U.S. House of Representatives; allowing broader leeway for public programs that support and encourage live birth over abortion.
To me this sounds like a good idea. Those who see it as a nightmare scenario should calm down and explain why they think so.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.
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