On Monday, the Supreme Court was at it again, dropping gavels and raising the roof(s)… of Whole Woman’s Health establishments across the state of Texas. At the crossroads of Roe v Wade‘s protective bias and Planned Parenthood v Casey‘s exception sits Whole Woman’s Health v Hellerstedt. In a 5-3 decision in which Justice Kennedy voted an abortion restriction unconstitutional for only the second time in his 28 years on the Court, the Supremes knocked down 2013’s Texas House Bill 2 and thus set a precedent for interpreting the recent canon of abortion related rulings. It is the rejection of the bill’s veiled innocence that makes the Court’s ruling so important: by deeming a few seemingly protective provisions unconstitutional, SCOTUS’s decision could potentially dismantle the national network of backhanded anti-abortion legislation.
But how can legislation be backhanded, and what’s the fuss about H.B.2, anyways? After all, the Bill seems to put women first by stipulating sanitary regulations for abortion clinics and requiring due diligence on the part of doctors by asking that they “have active admitting privileges at a hospital…located not further than 30 miles from” the clinic. However, the Court astutely noticed that Texas is, in fact, really really big. So, even if H.B.2 forced only half of the affected abortion clinics to close (which it did), this would still strand a concerning number of women in swaths of the state without access to healthy options.
As for those sanitary requirements, they require abortion clinics to reach “minimum standards… for ambulatory surgical centers” under Texas law.
Ambulatory surgical centers perform same-day surgical operations that don’t require overnight stays. According to NPR, these procedures are generally much more complicated than those performed in an abortion.
In this case, the Supremes say that the cost outweighs the benefit. Perhaps the most historic aspect of the Court’s ruling is what it establishes in stare decisis for abortion-related rulings. In writing that “Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution. Pp. 19–39,” the Court has both set a precedent for the relative weights of Roe v Wade and Planned Parenthood v Casey. Roe says that it is the State’s responsibility to make sure that abortions are performed “to insure maximum safety for the patient.” This clause is used to support legislation that entangles clinics in arguably excessive regulations, such as H.B. 2. However, Casey qualifies: if the regulation that furthers “valid State interest” ends up “placing a substantial obstacle in the path of a woman’s choice” then it is not “a permissible means of serving its legitimate ends.”
In other words, Casey forbids state legislatures from passing sneaky legislation that they know their constituents will vote for because it sounds like the law protects women, when in reality it makes totally adequate clinics shut down and forces women in a huge, often rural state like Texas into horrible, potentially lethal situations, which nobody wants.
Let’s look at some data. According to information presented in the case, of the more than 25 million people in Texas, about 5.4 million are women of “reproductive age” living within a geographical area of nearly 280,000 square miles. Abortions in Texas occur regularly at about 15-16% of the birth rate and there are 40 clinics in the state. H.B.2 would reduce the number of clinics to SEVEN. Maybe eight. As Justice Breyer wrote, “The suggestion ‘that these seven or eight providers could meet the demand of the entire state stretches credulity.”
These seven or eight clinics would exist only in a few metropolitan areas, which would create a particularly high barrier for poor, rural, or disadvantaged women. The Court also found that care offered at ambulatory clinics is not substantially better or safer than that offered at non-surgical clinics. The list of findings goes on—these are only a few highlights from the host of reasoning the Court extends.
Justice Thomas dissented, writing that the court has no business ruling on “the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it.” In other words, this ruling, like that issued in Casey, is a “jurisprudential oddity” because one entity (a women’s health center) is invoking a right that does not belong to it (a woman’s right to an abortion). Ever the legal conservative, he sees Whole Woman’s Health v. Hellerstedt as one in a growing line of cases that dangerously weaken the connection required between who is wrong and who can sue on their behalf. Justice Alito’s dissent, joined by Justice Thomas and Chief Justice Roberts, pursued a similar vein, and it also rejected the central claim of the majority opinion, saying that the laws were intended to protect women’s health and were not proven to be responsible for closing clinics.
Most importantly, H.B.2 is not unique. There is plenty of legislation across the nation that restricts abortion based on similar grounds. 14 states have admitting privileges requirements and 22 states share the facility requirement that H.B. 2 stipulates—which is why the Court’s decision may have a substantial affect on expanding access to holistic health options across the nation. Whole Woman’s Health provides access to abortions. Whole Woman’s Health, like other clinics across the country, promises to “educate patients about their bodies” and “explain medical procedures.” They offer STI testing, pap smear treatment, and even help out with good old yeast infections. When legislation shuts down 85% of a State’s abortion clinics, it is shutting down more than just abortion: it shuts down realistic health education, access to treatment for sexually transmitted diseases, and conversations that allow women to understand and appreciate who they are. Yes, regular hospitals still exist. But just like a man likes going to a barber shop, a garage, or his man cave to feel understood, so might a women prefer a fully supportive (and knowledgeable) environment in which to talk about the changes in her body or about how/why/when to have sex. Whole Woman’s Health can now do that, all across the Lone Star State.