You can’t fault Texas for inconsistency. It first criminalized abortion in 1854, and Roe v. Wade arose from a lawsuit in Dallas County. That 1973 Supreme Court ruling, which protects a woman’s right to have an abortion, is still the law of the land.
It’s a point worth keeping mind in view of last week’s legal roller coaster in Texas. First, a federal judge struck down an important part of the state’s restrictive new abortion law before it was scheduled to take effect Oct. 29. A few days later, a federal appeals court said the law could go ahead while appeals proceed.
As expected, 13 Texas clinics -- one-third of the state’s abortion providers -- then announced they would cease providing those services. That was exactly the result the law’s supporters wanted.
The law requires doctors who perform abortions to have formal admitting privileges at a hospital within 30 miles of the abortion clinic. Anti-abortion politics drove the legislation, not health policy.
Surely one reason Roe v. Wade has survived, despite decades of assaults on its constitutional and moral integrity, is its own lack of dogmatism. Amid intensely polarized and uncompromising public views on abortion, it sought a middle ground that established a woman’s right to abortion while making it clear the court deemed that right anything but absolute.
“The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests,” it reads. By “recognized state interests” it means “protecting both the pregnant woman’s health and the potentiality of human life.”
Texas officials knew better than to defy Roe too blatantly by stating their intention to curtail abortions. Instead, they chose an end run around the law: By using regulatory subterfuge to drive abortion clinics out of business, the state can claim that the right to abortion exists in theory in Texas while destroying it in practice.
The three-judge appeals court panel that unanimously allowed the law to proceed didn’t rule on its merits. But it clearly indicated its sympathy with the state, noting that requiring doctors to have admitting privileges at a nearby hospital is not so different from requiring abortions to be performed by licensed doctors in the first place. Even if some women will have to drive 150 miles to find abortion services, the panel said, that’s not necessarily an “undue burden.”
The case is not closed. The full appeals court has scheduled arguments on the challenge to the law for January. Other courts have provisionally blocked similar restrictions in Alabama, Mississippi, North Dakota and Wisconsin, suggesting the Texas law and like-minded efforts to undermine abortion rights could well end up before the U.S. Supreme Court.
Roe v. Wade has been subject to adjustments over the years, and as prenatal technology advances, it may require reconsiderations of the difficult balance between fetal life and women’s rights. But making abortion services geographically inaccessible, as the Texas law does, has the same practical effect as making them illegal. If Roe is the law of the land, the Texas law cannot stand.
To contact the Bloomberg View editorial board: firstname.lastname@example.org.