The 8-member U.S. Supreme Court will hear a case this Wednesday which could reinterpret the Court’s ruling in Planned Parenthood v. Casey and be the deciding factor in whether women across America have access to legal abortion. Since 1992 Casey has held as the most important Supreme Court decision on abortion since Roe v. Wade guaranteed a woman’s legal right to abortion in the first two trimesters of pregnancy. The case abortion-rights advocates and anti-abortion groups alike are watching this week is Whole Woman’s Health v. Hellerstedt, which will reexamine the restrictions lawmakers have placed on abortion providers.
The Casey ruling established the “undue burden” principle, by which state laws can pass restrictions on abortions so long as they do not have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” By this precedent, no serious roadblocks can be imposed to restrict access to abortion.
Since the “undue burden” principle was established, states have developed TRAP laws (Targeted Regulation of Abortion Providers), most within the past five years. 23 states now have laws in effect that force heavy restrictions on doctors and facilities limit their ability to provide legal abortions, shrinking the number of clinics still in operation and placing the burden of travel and wait times on the women themselves.
TRAP laws have found increasing success in state legislatures as they have distanced themselves from arguments about the rights of the unborn and instead focused on creating barriers that can be argued–albeit rarely scientifically substantiated–as protecting women’s physical and psychological health.
In Whole Woman’s Health v. Hellerstedt, the Court will look at two provisions from a Texas law passed in 2013, House Bill 2. One requires that doctors have admitting privileges in a hospital 30 miles away or less from their abortion facility. The other requires abortion clinics to meet the same operating standards as ambulatory surgical centers.
The first provision is extremely difficult to achieve as it requires doctors to form special relationships with hospitals and is impossible in areas without nearby hospitals. The second is extremely expensive, as surgical centers require millions of dollars of overhead. Neither is recognized as being necessary or demonstrably beneficial to the health of a woman undergoing an abortion procedure.
Most abortions are simply outpatient procedures that could be performed in a doctor’s office, very few of which ever lead to complications, and certainly not a greater instance of complications than other doctor’s office procedures that bear no similar restrictions. The American Medical Association and American College of Obstetricians and Gynecologists have petitioned the Supreme Court to recognize their opinion that the Texan restrictions are medically unnecessary.
Compounded by the Texas requirement that those who want abortions have to wait 48 hours between visits before getting the procedure — thereby requiring a pregnant woman to make the trip twice or stay overnight — it’s not exactly easy to get an abortion. And after a while, women can’t. Another Texas regulation passed in 2013 bans abortions after 20 weeks of pregnancy, with limited exceptions.
What this has meant for Texas is the decrease in abortion clinics from 40 to 10, all which are in the four major cosmopolitan areas–the border town clinic in McAllen would be only partially operational. With the closing of the El Paso clinic, West Texans must drive five hours to New Mexico or 8-10 hours to Dallas, where wait times can be from 15 to 20 days. As waits get longer, women may enter into their second trimester, later than many feel comfortable having an abortion. In a state with 5.4 million women of reproductive age, 10 clinics is simply too few.
With less access, there have also been 13% fewer abortions in the state of Texas since 2013.
Other states, such as Louisiana and Mississippi have followed Texas’s example and passed similar laws. Since passing the legal requirement that doctors must have hospital admitting privileges, both states have one clinic apiece that will stay in operation.
These restrictions on abortion clinics have left the highest burden on poor women in rural areas. The Texas laws, which isolate a large geographic area, considerably affects Hispanic women.
Since Antonin Scalia, the most outspoken opponent of abortion on the Supreme Court died unexpectedly on February 13, Whole Woman’s Health v. Hellerstedt does not run the risk of a 5-4 decision that could undercut Roe v. Wade. The now-8 member Court could either decide that the TRAP laws are unconstitutional in a 5-3 vote, or the case could be decided by a 4-4 vote which would leave the Texas laws in place and establish no national precedent. The demands state laws place upon abortion clinics would continue to increase as they have in recent years, along with the difficulties of accessing an abortion provider.
A broad high court ruling striking down the Texas provisions would show that the court’s 1992 decision still “has some teeth in it,” said Stephanie Toti, the lawyer who will argue the clinics’ case.
All but one of the Supreme Court justices have had consistent and firm stances on abortion issues except for one. Anthony Kennedy could be the fifth vote needed to strike down the restrictive Texas law. Kennedy ruled with Planned Parenthood in 1992 about undue restrictions, arguing against a state that wanted to require spousal consent for abortion.
Kennedy’s addition to Casey was on the philosophy of liberty, and he has repeated them as he supported gay rights causes moving forward. His words indicate a belief in the fundamental right to choice in reproduction:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Despite his vote on four gay rights cases in recent years, Kennedy has not found another restriction on abortion he would agree goes “too far” in its restrictiveness since he struck down spousal consent requirements. In every other case before the Court, Kennedy sided with the anti-abortion justices, including the 2007 decision to uphold the ban on late-term abortions.
Kennedy did support the four liberal justices, however, when in June 2015 he voted to delay enforcement of the abortion restrictions as Texas House Bill 2 went through appeals. This indicates he would be at least interested in reexamining “undue burden,” but nobody knows whether that means he would uphold the 1992 interpretation or seek to alter it.