ANALYSIS

Washington: It was one hell of a collision on Monday when the hugely successful American anti-abortion lobby ran into a brick wall called the US Supreme Court – in a single 40-page document the court destroyed a stealth strategy by which state legislatures had been drastically crimping access to abortion but had stopped short of outlawing it.

The battleground was Texas, one of dozens of states in which local legislators had signed on for a campaign to effectively walk back the constitutional right of American women to abortion, as fixed in the court's Roe v Wade decision in 1973.

Bethany Van Kampen (left) hugs Alejandra Pablus as they celebrate during a rally at the Supreme Court in Washington after the court struck down Texas' widely replicated regulation of abortion clinics. Photo: AP

The Texas provisions were classics in the genre. Arguing a need to protect women's health rather than to deny them abortions, the laws enacted in 2011 insisted that the state's 41 abortion clinics must have hospital-like facilities and that their doctors would need staff privileges at nearby hospitals.

The effect was the immediate shuttering of half of the Texan clinics on cost grounds and an expectation that half of the remaining 20 would have closed had Monday's Supreme Court ruling upheld the Texas laws. 

Those laws, variations of which have been enacted in about half of the states in the union, are cited as the harshest in the country. And the court's 5-3 decision is seen as the vehicle by which dozens of covert measures aimed at restricting access to abortion in various states will be undone.

Anti-abortion activists demonstrate in front of the Supreme Court in Washington. Photo: AP

In calling out the anti-abortion lobby, the court imposed a requirement on state legislatures that adds to a sense that its Monday decision is perhaps the most significant victory for reproductive rights advocates since the historic ruling in 1973 – if the states are tempted to tinker with abortion, they  are  now effectively barred from relying on what has been proved to be dubious medical evidence.

"We conclude that neither of these [Texas] provisions offers medical benefits sufficient to justify the burdens upon access that each imposes," Justice Stephen Breyer wrote for the majority. "Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access ... and each violates the federal constitution."

The stealth strategy was adopted early in the 1990s as anti-abortion activists concluded that they were nearing a point of diminished returns in a decades-old, high-profile campaign that amounted to a head-on challenge to Roe v Wade.

An anti-abortion activist stands in front of the Supreme Court in Washington as the judges struck down the strict Texas anti-abortion restriction law known as HB2. Photo: AP

Instead of noisy demonstrations that blocked physical access to clinics and page-one billing for violence that included firebombing clinics and assassinating doctors, they would chip away at the right to abortion – there would be no hurry and no big announcements; instead discreet enlistment of sympathetic state governments for laws that stopped short of a prohibition.

In essence, it called for endless rules and regulations that made the cost of running a clinic prohibitive. As described by one right-to-life campaigner, the objective was to create an environment in which "abortion may indeed be perfectly legal, but no one can get one".

States in which that environment was becoming the new normal included Alabama, Mississippi, Oklahoma, Tennessee, Wisconsin and most importantly Louisiana, where a Catholic and Southern Baptist-dominated State House is seen as the incubator for many of the new abortion restrictions, which  have then been shopped to other states.

Abortion rights activists Morgan Hopkins of Boston (left) and Alison Turkos of New York City rejoice at the Supreme Court in Washington. Photo: AP

Justice Breyer was scathing in the court's majority verdict, noting that in arguing their case, Texas lawyers had been asked but failed to produce any evidence that the law had made abortion safer: "We have found nothing in Texas' record evidence that shows, compared to prior law … the new law advances Texas' legitimate interest in protecting women's health."

Making sure that Texas legislators and the anti-abortion lobby knew they were being skewered, he went on: "When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

"Abortions taking place in an abortion facility are safe – indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-centre requirement. Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient's own home."

As this and related cases worked their way through the courts, a history of fictional medical consequences of abortion was outlined – that abortion was prone to complications, caused cancer, reduced fertility and brought on depression and/or suicide.

The Texas lawyers seemingly thought the story of a Philadelphia doctor who was convicted in 2011 of murdering three babies who were born alive in attempted abortions would be icing on the legal cake they presented to the Supreme Court.

But the indomitable Justice Ruth Bader Ginsburg went out of her way to disabuse them. She was in the majority, but she was unable to resist the urge to write a separate "concurrence" to blast the argument that abortions conducted in clinics were dangerous.

Arguing that when regulations reduced access to abortions, women were more likely to turn to underground clinics that might resemble that of the Philadelphia doctor, she writes: "When a state severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners [for want of a better alternative, but] at great risk to their health and safety."

Revealing an other-than-medical rationale behind the demand that doctors have hospital visiting rights, the American Medical Association told the Supreme Court that as an outpatient procedure with a risk of serious complication between 0.05 per cent and 0.2 per cent, abortion providers rarely met a hospital's requirements because abortion was such a safe procedure.

Oddly, anti-abortion groups have a name for the suite of laws and regulations that they have been promoting – Targeted Regulation of Abortion Providers. In a country that abbreviates everything, they were quickly dubbed the Trap Laws.

So have the Trappers been trapped? Hardly.

This is a never-ending war and the anti-abortion lobby didn't miss a beat –  a spokesman was on National Public Radio within hours of Monday's ruling, explaining how the campaign would be changing gears to base future cases on the extent to which a fetus suffers pain.

Follow Fairfax World on Facebook

Follow Fairfax World on Twitter