The Hellerstedt decision reaffirmed that any significant impediment to abortion will be struck down under the existing judicial regime, even regulations designed to keep abortion “safe, legal, and rare” (a goal that has been embarrassingly adopted by many pro-life leaders). Such regulations, even if upheld, merely serve to sanitize abortion in the public eye. “At least there are no more Gosnells,” the well-intentioned public might say, as the local abortionist with hospital admitting privileges commits the same atrocities legally in a regulated clinic.What really upsets these people, I think, is that the Court did not accept the pretext that Texas was just trying to protect women. It was obvious that Texas was trying to outlaw abortion. At some point these people started to believe their own bullshit but the Court accepted the testimony of experts who were able to take abortion safety out of abstraction and compare it to the safety of other procedures. Reason prevailed. But I digress.
Missing from all of the hyperbole of anti-abortion activists is the simple truth that, if they want to outlaw abortion, they will need a constitutional amendment to override Roe v. Wade which has stood for 43 years. The fact is that there are not 38 states to ratify the amendment in spite of activists screaming “They are killing babies!”
The same can be said for Obergefell v. Hodges. In spite of the fact that nobody dies when two lesbians marry, activists opposed to marriage equality are saying that they will sustain opposition in the same manner that they have sustained vigorous opposition to Roe v. Wade. Over time as more couples are wed, the sky-is-falling approach looks more and more preposterous.
It is unlikely that Obergefell will be neutered by silly marches or the marriage pledges of political candidates. Even if the Court were to shift right a new case would have to make its way through the system which means that someone needs to have standing, the ability to demonstrate how they were injured by same-sex marriage while demonstrating that reversing Obergefell is the only reasonable solution for redress. Take conservative Christians and, in particular, the Catholic Church out of the equation and there is no reason to outlaw same-sex marriage. Even if a case were to make its way to the Court the justices would be left with the question “why are we doing this?” No one—not Robby George, not Ryan Anderson—has ever coherently explained how same-sex marriage imperils opposite-sex marriage. Reversal lacks a secular purpose. That analysis might be academic. If Hillary Clinton is elected, as I expect, then the Court will be left leaning for the next 25 to 30 years.
Those who oppose marriage equality need a constitutional amendment. And they cannot scream about babies being murdered. They don't have 38 states to ratify. Two years from now a constitutional amendment to reverse Obergefell will seem as silly as a constitutional amendment to reverse Griswold v. Connecticut in order to make contraceptives illegal. The Church didn't like that one either.