Will a Victory in the Supreme Court Lead to Better Abortion Care, or Worse Laws?

Article taken from page 9 of the September/October Newsletter 2016

In 2013, the Texas state legislature enacted House Bill 2 (HB 2), one of the most draconian anti-abortion measures in the country. Among other provisions, it applied hospital-like building codes to any clinic providing abortion services, and required doctors who provide abortions to have admitting privileges at a hospital within 30 miles from where they perform the procedure. Although presented as an effort to protect women’s health and safety, Texas officials made clear from the beginning that their real intent was to stop abortions. Out of 40 clinics operating in the state before the law, half closed following its enactment. (Had the law been fully implemented, the number of clinics would have fallen to just 6.) Women living near closed clinics are now forced to drive an average of 85 miles, up from 22 miles before the law, and increased wait times have led to increased costs and delayed care.

A group of Texas clinics, including Whole Women’s Health Center, sued to prevent this law from going into effect, and the case slowly made its way through the courts, reaching the U.S. Supreme Court this year. In March, when the Supreme Court held oral arguments in Whole Woman’s Health v. Hellerstedt, several of the justices highlighted the absurdities of, for example, requiring patients to visit a million-dollar surgical center to take a medication abortion pill, or allowing a miscarriage-related abortion to be performed in a doctor’s office but not an elective abortion, even though the procedures are identical.

In June, on the last decision day before its summer break, the Court announced a 5-3 decision in favor of the law’s challengers and women’s health. Writing for the majority, Justice Stephen Breyer made a forceful argument that courts must rely on hard evidence in balancing the interests of the state with the constitutional rights of the woman. Quoting heavily from the facts highlighted by the district court, he concluded: abortion is “extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure” and “[t]hus, there was no significant health-related problem that the new law helped to cure.” Perhaps encouragingly, only Justice Clarence Thomas argued on behalf of the constitutionality of Texas’ law, with the remaining two conservative justices dissenting primarily on procedural grounds.

The victory represents a strong affirmation of abortion rights and a rebuff to past deference given to legislatures’ claims: in Whole Woman’s Health, the Court was clear that a state’s stated intent to “protect” women (however sincere or not) is not enough, it must also provide scientifically-sound evidence for such legislation.

One immediate effect of the decision was to upend similar laws around the country. In Alabama, Attorney General Luther Strange released a statement immediately following the decision declaring that he would no longer pursue an appeal of a 2014 Federal court ruling. “There is no good faith argument that Alabama’s law remains constitutional in light of the Supreme Court ruling,” he said.

Abortion opponents remain divided about where to go next. Back in Texas, where the road to re-opening closed clinics remains long, state officials have promised to “go through [the decision] line by line” to create new regulations the Supreme Court might accept.1 But other anti-abortion groups have announced their intention to instead double-down on banning common procedures and abortions after 20 weeks gestation. We expect more efforts to force women seeking abortion care to receive misleading information about the procedures’ effects (see “Lies in the Exam Room,” on page X). And abortion opponents used the Republican national platform to push through draconian language on a constitutional anti-choice amendment, ban on fetal tissue research, and de-funding Planned Parenthood.

Nevertheless, there’s reason for cautious optimism. With winks and nods from the conservative justices on the Court, there has been an explosion of anti-abortion legislation enacted, with states passing 288 new restrictions on abortion since 2010, equaling a quarter of all restrictions passed since Roe v Wade in 1973. But the unexpected death of Justice Antonin Scalia this year and the possibility that the ideological composition of the Court will shift — depending on who wins the White House in November — has increased the costs of pursuing such legislation. The next Court will impact not only which laws are upheld, but also which laws are enacted in the first place — with profound implications for women’s health.


References

1. Dallas Morning News, “Texas Republican leaders vow to keep fighting to restrict abortion,” June 27, 2016. http://www.dallasnews.com/news/politics/headlines/20160627-texas-republican-leaders-vow-to-keep-fighting-to-restrict-abortion.ece