The SCOTUS Justices Who Voted Against HB2 Are On The Wrong Side Of History

On Monday, the Supreme Court upheld its first abortion ruling since 2007, a 5-3 ruling in Whole Woman's Health v. Hellerstedt. Abortion has remained a polarizing issue among Americans, even amid decades of decline in pregnancy termination. Prior to the ruling, it was generally assumed that the court was evenly divided between liberal and conservative justices following the death of conservative Justice Antonin Scalia in February 2016. Had the ruling split 4-4 down party lines, the decision would have left a lower court the discretion to uphold the law. The dissent was penned by Justice Samuel Alito, and backed up by Chief Justice John Roberts and Justice Clarence Thomas.

Although the Supreme Court legalized abortion nationwide in its landmark 1973 Roe v. Wade ruling, this conversation is still occurring across the nation — so much that it was again in some regard at stake on Monday, the last day of SCOTUS' term. It specifically targeted the Republican-backed 2013 Texas law HB2, which placed an "undue burden" on Texas women. The question in 2007 pertained to a federal law banning a late-term abortion procedure, which was upheld 5-4. Interestingly, however, American views on abortion have not changed dramatically over the decades, and opinions are closely divided over the legality of abortion procedures.

A Reuters/Ipsos poll found Americans almost evenly split — 43 percent opposed and 41 percent in support — on whether or not they backed laws like the one in Texas, which some believe places an "undue burden" on women seeking an abortion. The specific wording of the case states that "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" creates the undue burden Texas women may face.

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In another Reuters/Ipsos online poll, conducted from November 12-17, 2015, and involving 3,387 U.S. adults, found that 43 percent of respondents agreed with abortion as a legal procedure, while 41 percent disagreed with its legality.

This is an issue of ideology, particularly bearing in mind that data does reveal a general decline in the prevalence of procedures nationally. Data from 2011 revealed that there were an estimated 1.1 million abortions that year at a rate of 16.9 per 1,000 women ages 15 to 44, according to the Guttmacher Institute. This group tracks abortion policy and supports abortion rights. Guttmacher's data showed that the rate had peaked at 29 abortions per 1,000 women in 1981. Much of this is likely due to the steep drop in unintended pregnancy, which naturally corresponds with the spread of contraception awareness.

The HB2 law in Texas required abortion doctors to have "admitting privileges" — a type of formal affiliation — with a hospital within 30 miles of their abortion clinic. It also required clinics to have costly hospital-grade facilities, which was cause for the undue burden argument. Texas is only one of a number of states that have pursued abortion hindrances and limitations, despite its status as a legal right to privacy under the Due Process Clause of the 14th Amendment of the U.S. Constitution.