Will Rejecting Woman-Protective Justifications for Anti-Abortion Laws Result in an Increase of Harassment and Violence?

Abstract

For abortion rights supporters, the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt is nothing but wonderful news. After years of legislative encroachments on the right to choose, the Court’s opinion sent a strong message that legislatures cannot impose a heavy burden on the right to abortion without having support from evidence-based medicine. This is an unequivocal victory for reproductive rights.

That does not mean, however, that the future will be all rosy for abortion provision because of this decision. Rather, this decision poses a possible risk for abortion provider and clinic safety. In the past, abortion restrictions have been justified on two different theories - protecting the fetus and protecting the woman. In Whole Woman’s Health, the Supreme Court erected a huge barrier in the way of legislatures seeking to restrict abortion in order to protect the woman. In response, anti-abortion organizations and legislatures may be forced to abandon this justification and rely exclusively on fetus-protection. Historically, there has been a connection between fetus-protection justifications for abortion restrictions and extreme violence and harassment against abortion providers and clinics. This article explores this connection and argues that the decision in Whole Woman’s Health may increase this risk going forward.

Keywords: abortion, Supreme Court, violence, Whole Woman's Health, violence, fetal protection