Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Abortion Regulations and Public Justice

Clarke Cochran


By Clarke Cochran

November 3, 2014


Last month, the US Supreme Court stayed a federal Fifth Circuit Court of Appeals decision that upheld new Texas regulations mandating that abortion facilities must comply with health and safety codes applicable to ambulatory surgery centers. Other similar regulations, enacted up until now by about half of the states, also require physicians who perform abortions in their own offices or in separate abortion facilities to have admitting privileges at a local hospital or an admitting agreement with a physician possessing privileges. Most abortion providers traditionally have not met these requirements. In states with such laws, the number of abortion providers and abortion facilities has declined, in some cases dramatically. 

These laws have created intense controversy. As the challenged clinics remain open until a final decision, it is worthwhile to consider these regulations from a public justice perspective. Advocates say that patients who experience potentially serious complications in the abortion procedure should have more intensive care available in the facility itself or ease of admission to a nearby hospital. Critics counter that protecting women’s health under these circumstances does not require physician admitting privileges, nor does it require abortion facilities raised to the standards of ambulatory surgery centers, and so these regulations are actually meant to restrict women’s choices and curb abortion.

Today’s environment seems to demand that one be either “pro-life” or “pro-choice.” The former is often seen as solely focused on fetal life, ignoring the well-being of pregnant women and of children after birth; the latter is often seen as ignoring nascent human life, solely concerned with women’s unfettered choice. While most elements of these characterizations are inaccurate, all abortion policy debates play into these narratives, including abortion clinic regulations.

So if regulations like these end up mired in controversy, what are some additional ways to uphold the public justice goal of protecting women’s health while also protecting nascent life?

Enhancing women’s health is perhaps better served by measures that can potentially win the support of advocates on both sides of the debate. There are numerous such measures: 

  • Adoption support that includes generous medical and financial support for women considering adoption, reduction of barriers to adoptive parents, and financial support for adoption. Such support could include refundable adoption tax credits that would help low-income families, and not just subsidize middle-class adoptions.
  • Enhanced medical support for pregnant women. Medicaid currently ensures that all pregnant women have some prenatal care available; however, the program’s poor reimbursements mean that availability is limited and not always in the best facilities. Providing all women who need it with excellent health insurance before and after pregnancy requires health insurance for all persons to ensure healthy fathers, mothers, and children.
  • Measures to improve women’s social and economic well-being through economic stimulus and full-employment programs, generous income support programs such as food stamps and earned income tax credits, wage improvement for lower income workers, and financial support allowing women to choose from a robust slate of childcare providers, including family and religiously based care. While some of these measures are controversial, they can contribute to the goal of enhancing women’s health and encouraging them to carry children to term.
  • Measures to strengthen family life. There is general agreement that two-parent families are better for both women and for children, and these can be supported by policies that encourage marriage and discourage divorce. This can include paid family leave, measures to ensure educational attainment, and changes in marriage and divorce laws.

Other state-enacted abortion regulations over the last few decades have met the goal of protecting nascent life: informed consent rules, waiting periods, paternal or parental notification, and the like. Courts have approved such regulations so long as they do not place an undue burden on the constitutional right to abortion (erroneously) established by Roe v. Wade in 1973. Abortion numbers and rates have declined owing to these regulations, as well as to better sex education, wider availability of contraception, growing pro-life beliefs, and more willingness of mothers to raise children as single parents.

Protecting women’s health and protecting nascent life demand what CPJ does best – bringing the virtue of prudence to arguments more commonly characterized by extremes. When faced with potentially polarizing laws and regulations, Christians concerned with public justice should strive for prudence and clarity about goals and resist ideological sloganeering. This can help move the conversation forward on measures that have the potential to engage wider support and protect human flourishing.


- Clarke E. Cochran, PhD is Professor Emeritus, Political Science at Texas Tech University and a Fellow of the Center for Public Justice.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”