Late Friday afternoon, the Supreme Court quietly announced it would take on a case, after years of legislation and litigation, that could be the end of legal abortion in huge swaths of the United States.
On its surface, Whole Woman’s Health v. Cole, which addresses a 2013 law that placed a series of onerous restrictions on abortion provision in the state, doesn't seem so absolute. The law passed in 2013 in a second special session of the Texas Legislature; state senator and later gubernatorial candidate Wendy Davis shut down the first attempt to pass it with a 13-hour filibuster. Already the law has forced the number of clinics to 18 abortion providers, down from 40 before the law was passed. If it hadn't been for the Supreme Court allowing an injunction against part of the law back in June, the number of legal providers would be down to 10.
That's enough to force many women to drive hours upon hours to get an abortion. Shutting clinics hasn't reduced demand, either, but instead many clinics have waiting lists, forcing women who wanted to abort much earlier in their pregnancies to often wait as long as three weeks more before they can get their abortions.
Still, it's easy to see why some people might not think we're in an emergency situation quite yet. You can still get an abortion in Texas (though it helps if you have money and supportive community to help you through all the obstacles), even if the Supreme Court upholds all the restrictions. This is, in fact, the argument that Texas is employing to defend the law.
— Irin Carmon (@irin) November 13, 2015
Under the circumstances, it might seem excessive to say that legal abortion itself is under threat. But the blunt fact of the matter is that it is, and depending on how the Supreme Court handles this, we may soon be looking at a country where legal abortion is only available in liberal states like New York and California, while red states keep passing all sorts of medically unnecessary restrictions that keep abortion legal in theory but impossible to legally provide in practice.
The question centers around the concept of an "undue burden." In a 1992 case called Casey v. Planned Parenthood, the court struck down a bunch of abortion regulations, such as requiring spousal consent, saying that states cannot put "undue" restrictions on abortion access. However, the court also said that laws meant to protect a woman's health could be passed, which left the door open to all the laws we're seeing today. In Texas, the two big laws are a requirement that abortion clinics meet ambulatory surgical center standards---basically have to be hospital-like surgical suites---and that abortion doctors need to have hospital admitting privileges nearby. These laws are clearly tailored to look like the kind of "women's safety" style regulations that the Supreme Court OK'd in 1992.
It's just a cover story, however. "Abortion is one of the safest medical procedures performed in the United States, and neither of the requirements imposed by the Texas law would make it any safer," the American Congress of Obstetricians and Gynecologists explained in a statement to the court on Friday. So the question before the court will be whether or not medically unnecessary restrictions that don't make abortion safer count as "undue" or not.
The worst-case scenario is that the court will go along with logic offered by the 5th Circuit Court, which upheld the restrictions, arguing that the state has a right to pass "medical" regulations on abortion, even if there is not a scrap of evidence to show they are medically necessary -- or even if they, as is the case in Texas, make abortion more dangerous for women. If the Supreme Court agrees that medical and scientific evidence doesn't matter when evaluating the validity of medical restrictions, that will open the door for states to basically ban abortion through red tape, claiming that it's all being done for "women's health." If you want to force doctors to stand on their heads while giving abortions or force women to run a marathon before they can have one, go for it. Just claim it's for "women's health," and, since actual evidence is not required, it's a go.
If this happens, this country will become one of haves and have nots on the issue of abortion. For women in New York and California, as well as a handful of other blue states, abortion will remain affordable and accessible. For women in Texas and other deep red states, abortion will basically be illegal and they will have to endure forced childbirth or buy drugs on the black market in order to get the abortions they need. Wealthy women -- like the wives and daughters of the politicians who pass these laws -- will simply fly to New York or California for their abortions.
Of course, the court could do the right thing and rule, correctly, that a restriction is inherently undue if its purpose is to make abortion harder to get while not making it safer to get. Forcing states to show the medical value of an abortion restriction would, with one quick stroke, invalidate the hundreds of new abortion restrictions passed in recent years in the states and cripple the anti-choice movement's attempt to force childbirth on women, particularly those women who don't have the financial means to travel for days to get an abortion. Considering how hostile the Supreme Court clearly is to dealing with this issue, this is the smartest move, even for more conservative justices. Kneecapping the anti-choice movement's ability to chip away at access would, if nothing else, mean fewer court cases dealing with this issue in the first place.
Unfortunately, history suggests that Justice Anthony Kennedy, who is the swing vote, could go wishy-washy and try to find some sort of "middle ground" on this, perhaps by upholding some of the restrictions and striking down others. While it might be emotionally satisfying for Kennedy, who is uncomfortable with banning abortion outright but also dislikes abortion since he thinks that motherhood is a woman's natural vocation (never mind that most women getting abortions are mothers already), this kind of decision is just kicking the can down the road. Anti-choicers will take it as a signal to go back to the drawing board and find some new laws to pass to replace the ones that got struck down, while doubling down on the ones that were upheld. Clinics will keep closing and litigation will continue.
The sad part in all this is that Congress actually has a simple, straightforward way to make this entire problem go away. It's a bill called the Women's Health Protection Act and its main provision is simple but powerful: It would require restrictions on abortion to be medically necessary. A state would not be allowed to have restrictions on abortion that it doesn't have on other medical procedures with the same low risk levels. Because states aren't about to force dentists to have hospital admitting privileges in order to do root canals or to force gastroenterologists to build full surgical suites in order to do colonoscopies, they wouldn't be able to force the same thing on abortion providers. You don't need to wait 24 hours to "think over" your mammogram, so you wouldn't have to do that for your abortion. It would make a whole lot of this contentious debate go away.
But of course, Congress is controlled by Republicans now and Republicans love nothing more than the non-stop screaming and hollering about women getting abortions (and, by implication, having sex without conservative Christian permission). And so here we are again, having to deal with the abortion question that should have been settled for good in 1973, and things look like they are going to have to get a whole lot worse before they even have a chance of getting better.