Vol. 80/No. 27 July 25, 2016
(feature article)
Overturn of Texas anti-abortion stricture: ‘A victory we can use’
The fact-based decision rejected the Texas government’s claim that it was protecting women’s health by requiring any doctor who performs abortions to have admitting privileges at a local hospital and demanding abortion clinics meet hospital-like standards.
The ruling in Whole Woman’s Health v. Hellerstedt lays the basis for overturning laws in 26 other states that impose one or both of these restrictions. On June 28 the Supreme Court declined to review court orders blocking similar laws in Alabama, Mississippi and Wisconsin.
The court decision cites evidence that abortion was an extremely safe procedure in Texas before House Bill 2 was passed. With enforcement in October 2013 of that law’s requirement of hospital admitting privileges for doctors, one-half of the state’s 40 clinics closed. The ambulatory-surgical standard provisions have been on hold. If implemented they could have resulted in 750,000 women in Texas living more than 200 miles from any abortion provider.
When asked to prove a single instance when the new law “helped one woman obtain better treatment,” wrote Justice Stephen Breyer in the 5-3 majority opinion, “Texas admitted that there was no evidence in the record of such a case.” Not one.
In her concurring opinion, Justice Ruth Bader Ginsburg said that abortion is one of the safest medical procedures performed in the U.S, with complications “both rare and rarely dangerous.” Tonsillectomies, colonoscopies and in-office dental surgery are more dangerous, but not subject to the same requirements as abortions. It is “beyond rational belief,” she said, to argue that laws that “simply make it more difficult for [women] to obtain abortion” protect women’s health.
“Our clinics stay open!” Amy Hagstrom Miller, CEO of Whole Woman’s Health and a lead plaintiff in the case, told cheering supporters at the Supreme Court after the ruling.
“Hopefully, with this decision, new high-quality clinics will be able to open in Texas and throughout the U.S.,” said Vicki Saporta, president of the National Abortion Federation.
The ruling “was the most devastating defeat in decades” for opponents of legal abortion, Mary Ziegler said in a July 2 op-ed column in the New York Times. It “stopped cold the momentum of what had seemed to be a promising strategy of focusing on women, and laws that legislators said protected women against dangerous conditions in abortion clinics.”
Offensive limits abortion access
The Supreme Court did not rule on other aspects of the Texas law — including a ban on most abortions after 20 weeks of pregnancy, one of earliest limits nationwide, and imposing procedures on medical (pill) abortions that require women to make three or four trips to the doctor. These restrictions are among hundreds implemented around the country that make it much harder for working-class and rural women to obtain abortions.
The 1992 Supreme Court decision Casey v. Planned Parenthood ruled it unconstitutional to place “a substantial obstacle in the path of a woman seeking an abortion before viability,” but upheld regulations the court deemed were not an “undue burden.” These included a 24-hour waiting period and parental consent for a minor to obtain the procedure.
The chipping away at women’s right to choose, which began almost immediately after the 1973 Roe v. Wade decision decriminalizing abortion, accelerated. The mounting restrictions take advantage of the fact that Roe v. Wade was based on medical judgments, rather than women’s right to equal protection of the law under the 14th Amendment. This includes allowing states to ban most abortions after “viability,” described as the point at which a fetus is “potentially able to live outside the mother’s womb” — a definition that changes based on medical advances.
The ruling is “a big step forward, among many obstacles,” Lexie Cooper, convener of the Austin, Texas, chapter of the National Organization for Women, told the Militant July 11. “There’s still a booklet here, ‘A Woman’s Right to Know,’ that doctors have to give to abortion patients. It claims abortion can lead to depression, alcoholism and breast cancer.”
Supporters of women’s rights should “refer to this straightforward decision, and use it,” said Loretta Ross, co-founder of Sistersong in Atlanta, in a phone interview.
The increase in recent months of actions in defense of women’s right to choose abortion, from the statewide “Fight Back Texas Truth Tour” to the March 2 rally in Washington, D.C., of more than a 1,000, overwhelmingly young people, shows the potential to advance this fight.
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