By / Mar 3

After three years of back-and-forth court decisions, the legal challenge to a Texas law regulating abortion procedures and their providers was finally heard by the U.S. Supreme Court March 2. The court’s decision in Whole Women’s Health v. Hellerstedt, though not precedent setting, could have ramifications on other pro-life legislation across the country.

The Supreme Court hearing of Texas House Bill 2 brings full circle what began in Texas more than four decades ago when the court’s Roe v. Wade decision conferred a constitutional right to an abortion. WWH v. Hellerstedt is considered one of the greatest challenges to elements of that law in almost 25 years.

If upheld, HB 2 could indirectly impact similar laws around the country. Without a majority decision—an unlikely outcome with the current eight-justice panel—the best-case scenario for pro-life advocates is a 4-4 tie, which would merely uphold the law and not give legal precedent for similar laws. Abortion advocates decry the law as a thinly veiled attempt to shutter clinics and end all abortion access in Texas. The bill’s proponents argue the measure raises the standard of care for women. The eight justices must decide whether the rationale of the law justifies any restrictions it may impose on a woman’s access to an abortion. Their decision is due in June.

A black-draped bench where the late Justice Antonin Scalia once sat served to remind all present that the most significant abortion-related case to come before the court in decades was being heard without the high court’s most ardently pro-life justice.

Texas Rep. Jodie Laubenberg, R-Murphy, author of HB 2, was not without hope.

“My feeling is God didn’t take us this far to say, ‘This is the end of the line,’” she told the TEXAN in a phone interview prior to the hearing. “As much as I will miss Scalia on the court, the end decision is God’s decision.”

Laubenberg watched from the Supreme Court gallery as the law she drafted was defended by Texas Solicitor General Scott Keller and opposed by Stephanie Toti of the Center for Reproductive Rights. Laubenberg was part of a four-member Texas delegation that included Gov. Greg Abbot, Attorney General Ken Paxton and Leslie French, Texas Health and Human Services Women’s Health Coordinator.

John Seago, Texas Right to Life legislative director, attended the hearing and told the TEXAN Keller grounded the state’s argument on the last abortion case to go before the Supreme Court, Gonzalez v. Carhart, in 2007. In that case involving a congressional ban on partial-birth abortion, the justices ruled it was not the court’s role to determine the medical necessity of a law. Rather, they must discern whether a state legislature or Congress could prove the necessity of the law outweighed the burden it might impose in its implementation.

Seago said Keller kept driving the point that, per Carhart, the court had no role in determining the medical necessity of HB 2. Justice Samuel Alito pressed the question as well, Seago said. Most encouraging were similar questions from Justice Anthony Kennedy, who is seen as the swing vote in this case.

But the liberal Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg repeatedly challenged Keller to defend the medical necessity of the law.

“That’s what is most worrisome,” Seago said, noting he feared some justices want to redefine the role of the court to allow it to go outside the bounds of the Constitution in making judgments.

Outside the court room conflicting rallies championed their causes. Seago said pro-life advocates were far outnumbered by pro-choice activists who appeared to have been bussed in for the event.

Before HB 2 went into effect in 2014, about 40 abortion clinics operated in Texas. Within weeks of its passage in July 2013, Planned Parenthood filed a lawsuit challenging two of the law’s four regulations—the administration of abortion-inducing medication and the requirement that clinic’s abortion doctors have hospital admitting privileges within 30 miles of the clinic. A federal judge struck down the law, but the U.S. Court of Appeals Fifth Circuit upheld it. The Supreme Court refused to hear the case and Planned Parenthood did not press the issue.

In April 2014 Amy Hagstrom Miller, owner of Whole Women’s Health, a chain of abortion clinics, filed suit challenging the regulations requiring abortion clinics meet the ambulatory surgical center (ASC) standards and the admitting privileges for just two Texas clinics, one in El Paso and one in McAllen. Planned Parenthood did not join the suit.

By the time WWH v. Hellerstedt was argued before the U.S. Court of Appeals Fifth Circuit, the number of abortion clinics had dwindled to about 10. The appellate court upheld HB 2 with one exception—the abortion facility in McAllen would not be held to the admitting privileges requirement. Miller appealed her case to the Supreme Court in June 2015. In agreeing to hear the case, the court put a stay on implementation of HB 2, allowing non-compliant clinics to remain open until the case is decided in June.

Since the passage of HB 2, abortion rights activists have sought to win their case in the court of public opinion arguing the law would shutter clinics and drastically hinder women from “reproductive health care,” a euphemistic term for abortion.

In response to that claim and withdrawal of Medicaid funds from abortion-providing health clinics, the State of Texas established the Women’s Health Care program. Medicaid-approved women seeking reproductive health care can access any of the 4,780 providers at 1,096 clinics across the state. Women can receive the same—or in some instances more—care they would be missing with the closure of the few dozen Planned Parenthood and other abortion clinics across the state.

Laubenberg, who does not shrink from her pro-life convictions, called the accusations “absurd,” noting abortion industry giant Planned Parenthood has built new clinics in Texas per the HB 2 regulations since the law went into effect in 2014.

One Planned Parenthood abortion facility is opening in San Antonio in direct competition with the lead plaintiff in the lawsuit, Whole Women’s Health.

That point was not missed by Keller. He told the court that abortion providers are building clinics in Texas according to the regulations they once decried as harmful to the industry.

By / May 5

Today, the Supreme Court ruled 5-4 to uphold the right of Greece, New York citizens to begin its municipal meetings in prayer.

Writing for the majority, Justice Kennedy argues that,

These ceremonial prayers strive for the idea that people of many faiths may be united in a com­munity of tolerance and devotion. Even those who dis- agree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and per­ haps appreciate a ceremonial prayer delivered by a person of a different faith.

[…]

Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be under­ stood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs.

In the Town of Greece, New York, the town board held monthly meetings to conduct city business. The board opened these meetings with a prayer given by a rotating resident of the town. A majority of the time, the prayers were offered by Christian pastors, although in a few instances members of other faith traditions offered the invocation (a Jewish man, a Baha’i leader, and a Wiccan).

The challengers to the Town’s practice argued that this practice amounts to an “establishment” of religion by the government. Because members of the public that are required to be at the board meeting for city business like zoning issues, they argue, the public is forced to pray.

Ultimately, this case is about whether a prayer offered before a governmental meeting of any kind is constitutional. This particular case is about a town board meeting, but prayers are offered every day as Congress, state legislatures, state and federal courthouses, city councils, and school boards open for business. Praying to God for wisdom, guidance, and Providence as the legislature opens for business has been a part of America’s tradition since the days of the Founding Fathers.

Legislative prayer serves the purpose of reminding us that the government is not a faceless, monolithic institution: it is made up of people with diverse perspectives and diverse religious viewpoints. And indeed, if American culture continues to grow more hostile toward the beliefs held by evangelical Christians, the freedom for legislators and other public officials to express their religious beliefs openly will be a great comfort to what may become a Christian minority.

At the same time, Christians must recognize that freedom to express religious viewpoints in the public square is just that: freedom. The days when it seemed possible to ensure that all religious speech in the public square reflected orthodox Christianity are becoming history. If Christians are to preserve our own rights to express our religious views in the public square, we must just as zealously defend the rights of members of other faiths to defend their religious views, even if they are different from our own.

The best path forward for the United States is neither secularism nor theocracy, but a healthy, civic pluralism that recognizes and respects the diversity of viewpoints and beliefs in our society.

What makes America great is our ability to accept our differences, even when those differences are expressed in the public square. When we allow evangelicals to pray as evangelicals, Catholics to pray as Catholics, Muslims to pray as Muslims, Jews to pray as Jews, we are not undermining political pluralism in our democracy, we’re upholding it.

Today, the Supreme Court ruled correctly; and Christians of all stripes should be thankful. But this victory is extended not only to Christians, but also to people of all faiths or no faith at all, for it is a victory in the state recognizing its limits over its own citizenry. This is a sentiment echoed by Justice Kennedy, who writes,

Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.

The ERLC provided a white paper on why this case is of significant importance. It’s available here.