On Wednesday, the Supreme Court struck down parts of a Texas law that would have decreased the number of abortion clinics in the state from around 40 to less than ten. In Whole Woman’s Health v. Hellerstedt, the Court held that restrictions put in place by HB 2 requiring clinics to have surgical facilities and doctors to have admitting privileges at a nearby hospital would impose an undue burden on women attempting to access abortion services. The case has been hailed as the most sweeping decision on abortion rights since Planned Parenthood v. Casey.
The decision on Monday comes after a series of legal blows to women’s reproductive rights over the past few years including the Court’s decisions in Burwell v. Hobby Lobby, McCullen v. Coakley and Gonzales v. Carhart. While the Court has granted for-profit companies the ability to withhold birth control from employees, struck down buffer zone laws and upheld the Partial-Birth Abortion Ban Act of 2003, states themselves have done much of the work to restrict reproductive health access.
The proliferation of state laws that chip away at or completely destroy women’s ability to access safe and legal abortions has left many Americans without access to the right ensured to them by Planned Parenthood v. Casey: access to a safe and legal abortion without undue burden. As of March, 2016, 24 states had in place laws or policies that “regulate abortion providers and go beyond what is necessary to ensure patients’ safety; all apply to clinics that perform surgical abortions.” According to the Guttmacher Institute, 11 states specify the size of procedure rooms, 10 states require abortion facilities to be within a set distance from a hospital and 8 states require providers to have some sort of admitting privileges. These laws use regulation as an excuse to limit access to abortion and disqualify many clinics from serving their patients. To understand the momentous nature of the Court’s decision, it is important to explore the rhetoric used by lawmakers and anti-choice activists to defend such laws.
When the Court granted certiorari, Texas Attorney General Ken Paxton released a statement claiming that “The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women.” After the decision came out this morning, he continued to assert that “HB2 was an effort to improve minimum safety standards and ensure capable care for Texas women.” Texas Lt. Gov. Dan Patrick called it a “devastating blow to the protection of the health and safety of women in Texas.” Texas Governor Greg Abbott expressed his disappointment with the ruling, arguing that “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”
The majority opinion directly rejected the assertion that HB 2 would protect women’s health. Regarding the admitting privileges requirement, the Court found, “We have found nothing in Texas’ record evidence that shows that, compared to prior law which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.” And the surgical facilities requirement? “The District Court found that ‘risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical center facilities.’”
The argument that HB 2 would improve safety for Texas women is a thinly veiled ploy to ratchet back reproductive health access for the 5.4 million Texas women of reproductive age. The argument was so poorly concealed that Texas couldn’t even maintain their claim during oral arguments: “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.” Today, the Supreme Court acknowledged the absurdity and danger of the restrictions put forward by HB 2.
The hypocrisy of TRAP laws abounds. Abortion has a 99% safety record and laws like HB 2 do more to hurt women than help them. When clinics shut down, women are forced to travel long distances, pay travel and housing fees and search outillegal and unsafe procedures. If the anti-choice movement were truly interested in the safety of women, they would increase access to reproductive health services. Instead, they choose to increase the chance that women, especially poor and minority women, are forced into the shadows, away from safe and legal abortion clinics.
Consider the insidiousness of claiming to protect those who you clearly harm. Setting aside the moral debate over abortion itself, we can all take moral opposition to oppressors pretending to act as champions for their victims, especially while doing all they can to harm them. Just as five Supreme Court Justices saw through the anti-choice smokescreens inWhole Woman’s Health, we are called upon to do the same.
As the reproductive justice movement celebrates the Court’s unequivocal rejection of the mistruths underlying restrictive state abortion laws, the work to ensure safe and legal access to abortion continues in state houses and courts across the country.
Further reading:
How many states could see their abortion restrictions struck down after the Supreme Court’s big ruling?