By Lande Watson
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
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 out illegal
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 in Whole 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.
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