Right there with them
Before Wendy Davis took to the floor of the Texas Senate for an 11-hour filibuster that ultimately failed to stop sweeping new restrictions on abortion, there was Casey.
Shorthand for Planned Parenthood v. Casey, the 1992 U.S. Supreme Court case reaffirmed a woman’s right to an abortion but gave states more power to restrict the procedure to “further the health or safety of a woman.” The 5-4 ruling, however, also said states can’t enact “unnecessary” regulations that have the “purpose or effect” of imposing an undue burden on those seeking the procedure.
On Wednesday, the court is expected to revisit the standards set by Casey — and potentially redefine the next era of abortion restrictions in the United States — when it takes up a legal challenge to Texas’ 2013 abortion restrictions, collectively known as House Bill 2. The Texas case, formally known as Whole Woman’s Health v. Hellerstedt, will allow the court to address disagreements among lower courts over what constitutes an undue burden and clarify how far states can go in restricting abortion.
It’s the next step of a legal journey that began in Texas when lawmakers passed HB 2 almost three years ago. The law requires abortion clinics begin to meet the same standards as hospital-like ambulatory surgical centers, which range from minimum sizes for rooms and doorways to the number of nurses required to be on staff. A separate provision requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.
Only 19 Texas clinics remain of the more than 40 that were open before HB 2 passed, and the restrictions are blamed. If the Supreme Court upholds the abortion law in its entirety that number could fall to less than 10, all in major metropolitan areas.
“There will be a right in name as long as Roe is still on the books, but if there are no clinics, then what does that really mean in terms of the right to abortion if you can’t exercise the right?” asked Cary C. Franklin, a constitutional law professor at the University of Texas at Austin. “This case really puts that question front and center.”
Indeed it does, though the makeup of the Court right now clouds things a bit. If we get the good Anthony Kennedy, in which case HB2 would have been struck down even with Antonin Scalia still on the bench, then perhaps there will finally be a limit put on the radical state legislators who have been busy enacting a tidal wave of dishonest laws whose sole focus is denying that right to women who wish to exercise it. If not – and some people think Scalia’s death makes Kennedy more likely to uphold Texas’ law – then that right is largely going to vanish in Texas and almost certainly Louisiana as well, though the rest of the country will still be in flux. The one thing that could change this is a Democratic President with a Democratic Senate that will allow SCOTUS to be restored to nine Justices. I mean, there’s no reason to believe Mitch McConnell will change his mind about voting on a replacement Justice if he’s still Majority Leader under President Clinton or Sanders, right? Maybe Kennedy will be dissuaded by the specter of chaos, or maybe he’ll just have had enough. For now, that’s the best hope. A summary and overview of the case from RH Reality Check is beneath the fold, and the Chron has more.
Background
On March 2, the Supreme Court is slated to hear arguments in Whole Woman’s Health v. Hellerstedt. Attorneys representing abortion providers in Texas have asked the Court to permanently block two major provisions of HB 2, the omnibus Texas law that requires 1) every abortion provider to obtain admitting privileges at a local hospital, and 2) clinics that provide abortion services to meet ambulatory surgical center (ASC) building standards.
Effects of HB 2
Candice is among the millions of women adversely effected by HB 2. An activist, Texan and Latina, Candice will argue against the law before the Supreme Court on Wednesday. In a new podcast for RH Reality Check, she talks about how her childhood informed her decisions about her own reproduction, and how HB 2 hindered the choices available to her.
Since the law was passed in 2013, dozens of clinics across the state have been forced to close, leaving only ten to serve more than 5 million Texans of reproductive age, and leading to longer wait times and unnecessary delays for Texans seeking abortion care. The law was cited as a key factor in the rise in self-induced abortions in a November study by the Texas Policy Evaluation Project, which estimated that between 100,000 and 240,000 Texas women have attempted to end a pregnancy on their own without medical assistance.
The facts about admitting privileges and ASC requirements
An overwhelming body of public health research shows that abortion is among the safest medical procedures, with a low complication rate. Admitting privileges and ASC requirements are medically unnecessary to ensuring patient safety.
- A 2013 brief by the American College of Obstetricians and Gynecologists and the American Medical Association stated there is “simply no medical basis to impose a local admitting privilege on abortion providers.”
- A 2013 investigation by RH Reality Check of documents obtained from health departments and attorneys general of every state uncovered no instances of abortion complications that necessitated admitting privilege requirements or other abortion restrictions passed by state lawmakers.
- An extensive review conducted by the Texas Policy Evaluation Project of surgical abortion complication rates found no evidence that first-trimester abortion is safer in an ASC compared to a clinic. Since medication abortion doesn’t involve a procedure, the review found “no reasonable rationale for requiring the procedure to be offered only at an ASC.”
- The Guttmacher Institute reports that the complication rate in first-trimester abortions (during which 92 percent of abortions are performed) is less than 0.05 percent. Researchers from University of California San Francisco found that the incidence of complications following abortion is lower than that of many other common, uncontroversial procedures, such as wisdom teeth extraction or tonsillectomy.
Additional Resources:
- An interactive timeline tracing the dramatic path of Whole Woman’s Health v. Hellerstedt from the Texas Senate to the Supreme Court.
- RHRC Data entries and key documents on HB 2 and Whole Woman’s Health v. Hellerstedt.
- A map of Texas clinics, including those that remain open and those forced to close post-HB 2.