How the Same-Sex Marriage Case Might Affect the Texas Abortion Law

By now it is not news: on June 26, 2015, the Supreme Court of the United States ruled that all states must license same-sex marriages. Many people heralded this decision as an historic win for equality and freedom. While that claim may have philosophical merit, the decision is a radical departure from the Supreme Court’s usual legal analysis. And the underlying reasoning may affect much more than marriage. This ruling may guide the Court to strike down Texas’s new abortion restrictions, effectively keeping open dozens of abortion clinics that would have otherwise shut down.
How would this happen? On June 29, 2015, the Supreme Court ordered Texas to halt implementation of its new abortion laws until the Supreme Court could hear the case during the next term. This means that the Court will likely issue a ruling on the constitutionality of the Texas law around this time next year. And the reasoning used in the same-sex marriage opinion could affect the future abortion decision.
A right to abortion, like the right to same-sex marriage, is not explicitly stated in the Constitution. That’s why Roe v. Wade and this past week’s decision, were so controversial: the Supreme Court found these rights imbedded within the Constitution’s “liberty” protections. And with the Court’s radical departure in the same-sex marriage case, the standard for finding new rights within the Constitution has shifted in favor of ambiguous notions like “dignity” and “autonomy.” This is could be good news or bad news for the pro-life movement.
What about the same-sex marriage case poses a threat to the Texas abortion law? First, both cases are analyzed under the 14th Amendment’s “Due Process Clause,” which prohibits states from depriving any person of “life, liberty, or property, without due process of law.” Normally, those protected liberties are spelled out in the Bill of Rights. In the latter half of the 20th Century, however, the Court began to recognize rights that extend to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and belief.” According to Justice Anthony Kennedy, it is the Supreme Court’s duty to identify and protect those rights. It requires Justices, he said, “to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” The Constitution, further, protects “the right of all persons to enjoy liberty as [they] learn from its meaning.” As time marches on, new rights and liberties are addressed as the Court gains “new insight” into the nature of liberty. Such is the framework for the Supreme Court’s current analysis of what “liberty” is protected under the Constitution. This is troubling for many reasons, not least of which is that the concept of liberty is left to the unelected Justices, using their “new insight” to define what levels of dignity and autonomy are protected by the Constitution during any given generation.
But what does this mean for Texas’s abortion law? It depends. If the Court chooses to adopt the “dignity” approach, it could have disastrous effects for many unborn children. Justice Kennedy is a pioneer of the dignity analysis, and personal reproductive choices are often at the heart of many of his examples of autonomy and dignity protected by the Constitution. And because Texas’s law places certain restrictions on a woman’s ability to exercise that “autonomy,” the law will be left up to the “reasoned judgment” of a majority of the Court. There are no clear standards under this approach, which creates much uncertainty when drafting legislation like this. And because the Court has to define the rights associated with a person’s dignity and autonomy, it also must set the boundaries of those rights. If the Court engages in the same kind of ad hoc analysis of progressive notions of dignity and personal autonomy, it may well strike down the Texas law as impermissibly intrusive on a woman’s personal autonomy.
If, on the other hand, the Court follows a more scientific approach (as it has in some abortion cases with regard to viability), this may be good news for the Texas law. Scientific studies show that unborn children as young as 20-weeks are able to feel pain. Babies born as young as 22-weeks gestation have survived without permanent disability. And the scientific consensus that life begins at conception continues to grow. Scientifically—and politically—the pro-life movement has never been stronger. However, we should still be concerned that such “reasoned judgments” are taken out of the peoples’ hands and placed in the hands of unelected judges. This is the grave cost of viewing the Constitution as a “living document” in a growing secular society.
The prevailing legal standard for abortion cases is that abortion restrictions may not “unduly burden” a woman’s “right” to privacy with regard to her reproductive choices. This is dangerous territory given the recent Supreme Court decision on same-sex marriage. One of the reasons that Justice Kennedy cited for striking down same-sex marriage bans was that such bans impose a “stigma” upon the dignity of same-sex couples. In relation to abortion culture, stigma is a loaded term. Campaigns seeking to remove the stigma from all abortion practices are commonplace in the media. If the Court latches on to this notion of stigma surrounding abortion, it may find that the Texas law’s restrictions add extra “stigma” to a woman’s autonomous choices.
Until there is an actual decision, we won’t know how the Supreme Court will rule on the Texas abortion law (and, in fact, the Court must still decide to even take the case). But the amorphous, vaguely-philosophical precedent set by the same-sex marriage decision does not bode well for the future of self-government and societal restraint. Nor does it bode well for unborn children in Texas. If the Supreme Court embarks on a path of self-reflection and reasoned judgment—instead of Constitutional analysis—we may find the lives of thousands of unborn children hanging in the hands of one Court.
The good news, however, is that we worship a sovereign God who ordains even that leaves fall from the trees. The universe is upheld each second by the word of his power. Nothing happens outside of his power and will. Yet our actions—as individuals and as a nation—have consequences. We should pray for our country’s highest court. Pray that sound reason would prevail, and that we as a country would recover the rule of law, which provides the most protections for life, liberty, and property. And pray for all of our authorities, that we may be able to lead peaceful and quiet lives of obedience to God (1 Tim. 2:1–4).
Kyle Bryant is an attorney (and urban design enthusiast) with Bryant Law in Houston, Texas. His practice focuses on civil litigation and family law issues. He is also an active member at Sojourn Heights Church in The Heights neighborhood of Houston. He can be reached at