Leaders Abortion in America Back in court
It may poison the 2016 election, but the Supreme Court should strike down Texas's restrictive abortion law.
AS if next year's presidential election were not shaping up to be contentious enough, the Supreme Court has picked 2016 to issue its most consequential ruling on abortion in 20 years.
This will add fresh impetus to a cultural battle that has raged, unresolved, on America's national stage for almost half a century.
That is regrettable.
It is also necessary.
At issue is whether a law passed by the Texas legislature called HB2 is constitutional.
The state has piled regulations on abortion clinics with the aim (so far rather successful) of closing them down.
The number of such clinics in the state has dropped from 41 in 2012 to 18 at the last count.
If the court rules next year that HB2 is constitutional, that number will shrink further.
Other states keen to restrict legal access to abortion would follow suit.
Already there are four that have only one clinic for the whole state, making the legal termination of a pregnancy a right that exists in theory but not in practice.
A clear majority of Americans have, for decades, told pollsters that abortion should be legal in most cases.
More recently, a narrower majority has emerged for outlawing abortion after 20 weeks, with some exceptions.
That position―access to abortion that is legal and unrestricted until late in the second trimester, with some restrictions thereafter―is not unlike the compromise reached in other countries.
In more secular Britain abortion is banned after 24 weeks, with exceptions in cases where to continue the pregnancy would threaten the life of the mother, or where the child is likely to be severely disabled.
he Supreme Court itself has already endorsed limits after 24 weeks, the point at which a fetus is considered to be viable outside the womb, putting it squarely alongside public opinion.
The best way forward would be to pass legislation to this effect.
But there is no chance of that, because the two sides are farther apart than ever, with some pro-choice groups arguing that abortion is an absolute right that cannot be restricted under any circumstances, and their pro-life opponents retorting that all abortions are acts of murder.
The shift to the extremes has been most noticeable among Republicans.
Marco Rubio, who currently looks a good bet to win his party's presidential nomination, is in favour of any law that promises to reduce the number of abortions, even one without exclusions for rape or incest.
In the past four years state legislatures have put in place 231 restrictions on abortions―more than in the whole of the previous decade.
Bill of rights
To make abortion safe, legal and rare remains a good aim for America's laws.
But closing legal abortion clinics does nothing for safety, whatever the proponents of the Texan law claim.
If such restrictions are adopted more widely, abortion will, in practice, become illegal in many places, leading to the return of dangerous, clandestine procedures.
It will not necessarily become rarer.
Whatever the law, abortions will be carried out.
The appeals court which upheld HB2 earlier this year acknowledged as much when it wrote that Texans who wanted an abortion could in future drive to New Mexico.
Factors other than its legality are more important in lowering the abortion rate.
Between 2002 and 2011―just before some states began to pile on restrictions―America's abortion rate dropped by 14%, largely because the rate of teenage pregnancy fell.
That nine unelected justices can do a better job of reflecting what America, in aggregate, favours than thousands of elected politicians in Washington or state capitols―as they did when ruling for gay marriage―is a painful indictment of American politics.
It is nevertheless true.
Despite the reaction it will provoke, the court should strike down HB2.