BY ALLISON CHANG
With the recent Supreme Court case regarding abortion, Whole Woman’s Health v. Hellerstedt, the court stands to make an important decision on women’s abortion rights. The legality of abortion laws at both the state and national level has been hotly contested in the Supreme Court since the early 1970s, most notably with the landmark case, Roe v. Wade (1973), which legalized abortion and ruled that states could no longer prohibit abortion, except in late pregnancy after a fetus reaches viability and can live outside the womb. By 1992, however, Planned Parenthood v. Casey overturned the court’s previous ruling that the state cannot have any involvement in abortions before the end of the first trimester and allowed states to enact laws provided that the laws did not create “undue burden” for a woman or place “substantial obstacles” in seeking an abortion.[i]
This ruling led to the viability of TRAP laws, also known as Targeted Regulation of Abortion Providers laws, which many pro-choice groups consider to be a threat to abortion rights by increasing the requirements on abortion without much scientific backing. Texas’s new abortion law, HB2, is considered to be a TRAP law because of the following measures:
“A physician performing or inducing an abortion: must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced” – Section 2. Sec. 171.0031[ii]
“The minimum standards for an abortion facility must be equivalent to the minimum standards adopted under Section 243.010 for ambulatory surgical centers (ASC).” – Section 4 – Section 245.010(a)
Thus, the ruling on HB2 by the Supreme Court is not only significant in making abortion accessible to women in Texas, but also in setting a precedent for the constitutionality of TRAP laws.
After the law was passed, half of Texas’ abortion clinics were closed down for being unable to meet ASC standards, and if the Supreme Court rules in favor of the law, the number of clinics in Texas would likely drop down even more to around ten or fewer clinics in the whole state.[iii]
The central argument of the prosecutors is that the provisions in the HB2 measure create “undue burden” on the right to abortion for women,[iv] a precedent made in the Planned Parenthood v. Casey case in 1992.
Because of the new requirements on abortion clinics and physicians that perform abortions, many of these clinics have been forced to shut down, making it difficult for women who do not live close to abortion clinics to access abortion services. Coupled with other existing Texas abortions laws, such as a law that states all women seeking a medical abortion (an early non-surgical abortion using only pills) must have at least four visits or more to the same abortion facility and physician, women seeking abortions in Texas find themselves having to travel longer distances more frequently than some may be able to.[v] These women then find themselves having to pay high travel costs, sometimes even having to book a hotel room rather than travel back and forth between their home and the nearest clinic, yet another barrier for poor, rural or disadvantaged women.[vi]
The defendants hold that the new requirement for abortion centers to have the same standards as an ambulatory surgical center are designed to protect the health and safety of women seeking an abortion.[vii]
However, one such abortion clinic was forced to close down because it’s hallways were only 3 feet wide, whereas the ACS requirements are 8 feet wide corridors. The ACS requirement was designed to ensure that two surgical gurneys could easily travel through the corridors. In a small-scale abortion clinic, on the other hand, not only are most abortion procedures not surgical and only require taking pills, but there are also few instances where surgical gurneys would be necessary in the first place.[viii] Around 20% of abortions are performed by taking a pill, while around 79% require a dilation and curettage procedure.[ix] The latter procedure simply involves dilating the cervix and then inserting a suction tube into the uterus to remove the fetus, which does not require any post-procedural care other than staying in a recovery area, much less a surgical gurney.[x]
The other main point of the law, which requires doctors have admitting privileges at local hospitals has also been contested as unnecessary, with the American Medical Association and The American College of Obstetricians and Gynecologists stating, “There is no medical basis on which to conclude that women’s health would be advanced by requiring that clinicians obtain privileges. Doing so is inconsistent with prevailing medical practice and imposes unnecessary restrictions on the ability of clinicians to provide abortion care.[xi]”
However, what makes Whole Woman’s Health v. Hellerstedt, different from past landmark abortion cases that have been brought to the Supreme Court is not so much the continued battle over constitutionality, but the latest gender distribution of the Supreme Court. There are currently three female justices: Justices Ruth Bader Ginsburg, Sonia Sotomayer, and Elena Kagan. Justices Sotomayer and Kagan are the two most recently appointed Justices, taking their positions in 2009 and 2010, respectively.
Justice Ginsburg is the third most senior member of the court currently serving, and was the second woman to be appointed a Supreme Court Justice, after former Justice Sandra Day O’Conner. The last major Supreme Court case regarding abortion was Planned Parenthood v. Casey (1992), back when the only female Justice was O’Conner.
Thus, the Whole Women’s Health v. Hellerstedt case will be interesting for not only the ruling, but also for the way that the debate is proceeding. It is highly likely that due to the presence of only eight serving Justices, due to Justice Antonin Scalia’s death in February, that there will be a 4-4 split with the three female Justices and Justice Stephen Breyer on the liberal side. The female Justices have been particularly outspoken, even going as far as ignoring conventional court proceedings by continually extending the time limits given to the prosecutors for oral arguments. In the chance that a 4-4 tie does occur, the Texas law will continue to be upheld but have no precedence in terms of constitutionality.[xii]
Furthermore, with no federal mandates, states will be free to debate the question in their own judicial circuits, meaning that women living in pro-life leaning circuits may find their rights increasingly restricted. The ruling on this case doesn’t simply have to do with Texas, but with the legality of other TRAP laws, opening the door to a whole host of opportunities for conservative governments to limit women’s ability to acquire an abortion, as well as blocking those who feel that the TRAP laws are unconstitutional from challenging such laws in their courts.
[i] “A History of Key Abortion Rulings of the U.S. Supreme Court.” Pew Research Centers Religion Public Life Project RSS. Pew Research Center, 15 Jan. 2013. Web. 30 Mar. 2016.
[ii] Texas (State). Legislature. Assembly. An Act relating to the regulation of abortion procedures, providers, and facilities; providing penalties. … H.B. 2. Texas State Assembly. Web.
[iii] De Vogue, Ariana. “Liberal Justices Critical of Texas Abortion Law.” CNN. Cable News Network, 3 Mar. 2016. Web. 30 Mar. 2016. <http://www.cnn.com/2016/03/02/politics/supreme-court-abortion-texas/>.
[iv] Alter, Charlotte. “Women Supreme Court Justices Question Logic of Abortion Law.” Time. Time, 2 Mar. 2016. Web. 30 Mar. 2016. <http://time.com/4244904/women-justices-rally-to-defense-of-abortion-providers-in-supreme-court-oral-arguments/>.
[v] “FAQ: NEW ABORTION LAWS IN TEXAS.” The Lilith Fund. The Lilith Fund, 2016. Web. 30 Mar. 2016. <https%3A%2F%2Fwww.lilithfund.org%2Fnew-laws%2F%23cani>.
[vi] Epps, Garrett. “Will the U.S. Supreme Court Take Precedent Seriously on Abortion?” The Atlantic. Atlantic Media Company, 29 Feb. 2016. Web. 30 Mar. 2016. <http://www.theatlantic.com/politics/archive/2016/02/us-supreme-court-whole-womens-health-v-hellerstedt/471546/>.
[vii] Bassett, Laura. “Rick Perry Signs Abortion Bill Into Law.” The Huffington Post. TheHuffingtonPost.com, 18 July 2013. Web. 30 Mar. 2016. <http://www.huffingtonpost.com/2013/07/18/rick-perry-abortion-bill_n_3613158.html>.
[ix] Pazol, Karen, Andreea Creanga, and Denise J. Jamieson. “Abortion Surveillance — United States, 2012.”Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 27 Nov. 2015. Web. 30 Mar. 2016. <http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6410a1.htm?s_cid=ss6410a1_e>.
[x] White, Cynthia D. “Abortion – Surgical: MedlinePlus Medical Encyclopedia.” U.S National Library of Medicine. U.S. National Library of Medicine, 16 Nov. 2014. Web. 30 Mar. 2016. <https://www.nlm.nih.gov/medlineplus/ency/article/002912.htm>.
[xi] Whole Women’s Health v. Hellerstedt. Medical Associations Amicus Brief. The Supreme Court of the United States. N.d. SCOTUSblog. Bloomberg Law, n.d. Web. 30 Mar. 2016. <http://www.scotusblog.com/wp-content/uploads/2015/10/Medical-Associations-Amicus-Brief.pdf>.