The abortion rights movement isn’t winning.
Sure, abortion rights advocates were justified in cheering the Supreme Court decision Monday striking down two Texas regulations: Those laws were among the most restrictive in the country and led to multiple clinic closures.
What went less discussed were the 286 other abortion restrictions that have passed since 2010. A quarter of all post-Roe abortion restrictions have passed in the last five years alone.
The Supreme Court decision didn’t touch them.
The United States leaves it to states to regulate abortion access, under some basic parameters set by the judicial system. The landmark 1973 decision Roe v. Wade established abortion as a right — but also gave states the right to restrict access in significant ways meant to promote the state’s interest in the unborn child.
The pro-life movement has, as of late, had remarkable success taking advantage of this structure. When one state passes an anti-abortion law, national networks are quick to disseminate model bills that other state legislators can introduce and pass too.
Abortion restrictions now pass in waves — and the waves are happening with increasing frequency.
Opponents of abortion rights are constantly experimenting with different tactics to restrict access, whether targeting abortion providers, their clinics, or the procedures a woman has to go through before terminating a pregnancy. And legislators aren’t waiting for one state’s law to be tested in court and receive a legal sign-off; these laws are proliferating quickly through the United States before any judicial body has weighed in. States are begging forgiveness rather than asking permission when it comes to abortion access.
As a result, access in the United States has deteriorated significantly in just the past five years. More than 100 clinics have closed around the country since 2011. And the Texas decision doesn’t change much about that.
States have passed hundreds of abortion restrictions in the past five years
The two Texas provisions that fell in the Supreme Court ruling are only a couple among hundreds that states have passed in recent years.
Republicans had a landslide election in 2010 — gaining more control not just in Congress but also in state legislatures. This gave the pro-life movement a better chance at passing anti-abortion laws — and pro-life groups quickly got to work.
The National Right to Life had three model bills it pushed out to states at the end of 2010, including the ban on abortion at 20 weeks' gestation and a law barring health insurers from covering abortions.
Those model laws got quick traction. In 2010, when the NRLC began pushing 20-week abortion bans, only one state (Nebraska) had a law outlawing abortion so early in the pregnancy. As of the start of 2016, 12 states now have these types of laws.
Texas’s abortion laws fall into this category, too. Texas was one of 15 states to pass laws regulating clinics as surgical ambulatory centers between 2013 and 2015 alone.
The Supreme Court ruling undoubtedly makes it hard to pass the specific type of laws that Texas had enacted. The new ruling also makes it likely that similar standing laws will likely be repealed in the next few years.
But the pro-life movement will near certainly find a way to work around this. Activists have gotten especially good at experimenting with a few new abortion restrictions each year — picking a handful of priorities and working with state-level advocates to pass these restrictions in multiple places.
So knocking down the Texas law only knocks down one of the many anti-abortion restrictions that have proliferated in recent years.
Legislatures can move faster than courts. And that makes a huge difference.
The pro-life movement is constantly on the offense, figuring out new ways to restrict abortion access. This leaves the pro-choice movement playing defense, filing court challenges to block these news laws. Supporters of abortion rights are constantly playing catch-up in ways that leave abortion access restricted.
The Texas laws are a perfect example of this dynamic. They passed in 2013 and faced immediate legal challenges. And while opponents tested the laws in court, 20 clinics closed. Women had to travel significantly further to obtain abortions — and one study estimated that nearly a quarter-million Texas women tried to illegally terminate pregnancies themselves.
Even with the new Supreme Court ruling, the effects of Texas’s law won’t be quickly reversed. Clinics there won’t reopen overnight. Alexa Ura with the Texas Tribune summarized the situation succinctly:
The more than 20 clinics that have shuttered since HB 2 took effect can't just reopen for business: They'll have to reapply for licensure, which is no walk in the park in Texas. Don't expect state health officials — on the losing end of this battle — to make it easy for them.
Texas’s laws will have effects that will stretch on for years. And this is even truer in the two dozen other states that have abortion restrictions similar to Texas that the Supreme Court struck down. Each of those other laws needs to be challenged individually now, and found unconstitutional in the courts before being wiped from the books.
"It’s not like marriage equality, where all of a sudden, if the forms were available, you could go get married," says Elizabeth Nash, the state issues manager at the Guttmacher Institute, a nonprofit research organization that supports abortion rights. "Cases have to be resolved or filed."
So even the laws that do fall won’t go easily. They leave a lasting legacy of depressed access to abortion throughout the United States.
The Texas ruling won’t stop the pro-life movement. It might just shift their strategy.
Americans United for Life is the oldest pro-life group in the country. And every year it releases a set of model laws that it encourages state legislators to attempt and pass.
You can read the 2016 model laws here. A few of them will likely be derailed by the Texas ruling because they’re too similar to what the Supreme Court struck down. But most of them won’t — they’re different enough experiments in new ways to restrict abortion access.
AUL’s 2016 model laws includes:
- A law banning "telemedicine abortion" (where a patient receives counseling for abortion-inducing drugs from a doctor via webcam, rather than in person)
- A law increasing parental involvement in abortion
- A law that requires a woman to receive an ultrasound prior to abortion
The list goes on and on. And it shows the savviness of the pro-life movement’s strategy: not pinning their hopes on one law but testing out as many laws as they can and seeing which gains political traction. If one or two get struck down by the Supreme Court — as Texas’s laws did Monday — there are still dozens of other bills waiting in the wings, all ready to be tested.