The end of real choice in Texas: This is what would happen if SCOTUS doesn't intervene

Earlier this month, the Supreme Court heard arguments in a case pitting Texas against reproductive justice

Published March 14, 2016 11:58AM (EDT)

  (Reuters/Andrew Kelly)
(Reuters/Andrew Kelly)

Since 2001, when George W. Bush took office, 471 new abortion restrictions have passed in states around the country. With 189 occurring between 2001 and 2010, and 282 passed from 2010 till July 1, 2015.

Four hundred and seventy-one restrictions. Consider that number. Think about what it might mean for the right to an abortion in the United States.

In the 1973 decision in Roe v. Wade decision, the U.S. Supreme Court ruled that a woman, in consultation with her physician, has a constitutionally protected right to choose abortion in the early stages of pregnancy — before viability (occurring at about 24 weeks by the American Congress of Obstetricians and Gynecologists). In 1992, the Court heard Planned Parenthood v. Casey and upheld the basic right to abortion. In that ruling, however, the Court also expanded the ability of the states to enact all but the most extreme restrictions on women's access to abortion by asserting that states could indeed pass restrictions on abortion access, provided they don’t cause an “undue burden” to the person seeking an abortion. In the past 15 years we have seen 471 restrictions enacted, with only very few failing the “undue burden” test. These restrictions include parental notification or consent requirements for minors, refusals to cover the procedure with public funding, limits on private funding, and a wide range of regulations on abortion facilities. Texas’ House Bill 2 (HB2) is currently under consideration by the Supreme Court as to whether its host of restrictions on abortion care and the clinics that provide it are constitutional.

Earlier this month, as the Court heard opening arguments on the case, Justice Ginsburg exposed a lie in the argument that these restrictions are intended to make the procedure safer for Texas’ women. Just moments after Texas Solicitor General Scott Keller began his arguments in favor of upholding HB2, Justice Ginsburg got to the matter of “undue burden” and women’s health. She asked Keller how many women would live 100 miles or more from a clinic if the Texas law went into effect.  He responded: about 25 percent. But Keller noted that his count did not include the clinic in Santa Teresa, New Mexico, just over the border from El Paso. So, according to his argument, HB2 does not not impose on “undue burden” on abortion-seeking El Paso women, because they could simply cross state lines for the procedure.

This is when it got good. “That’s odd that you point to the New Mexico facility,” Justice Ginsburg said, unmoved. “So if your argument is right,” she continued, “then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.” Keller tried to respond, but the Justice wasn’t done. “Well,” a stern voiced Justice Ginsburg said, delivering the most salient question of all, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”

This exchange points to the clear-cut hypocrisy in the state’s case. Pro-choice advocates often make the claim that such restrictions aren’t intended to make the procedure safer, but to make it impossible to access. They claim that these restrictions impinge on a person’s “right” to an abortion. Scott Keller’s exchange with Justice Ginsburg exposed the hypocrisy without much room for doubt.

This is the central question at hand, and one that should be posed to each of the candidates for president of the U.S. (and possibly all other candidates for elected office as well): Do you believe that a person has the right to an abortion? And then the crucial follow up questions: how hard should someone have to work, how far should they have to travel, how long should they be forced to wait, and  how much money should they have to spend, to access that right? What is the threshold for a reproductive right? Is it some distance from their home or work that shouldn’t be exceeded? Some percentage of their income that would be too much to spend? Whose obligation is it to ensure that a person can access the rights that the Constitution grants them?

Or is it that a person should be able to get an abortion, so long as it is safe and they’ve decided it’s what they want to do? If it’s this one then who is responsible for making sure that there are no insurmountable burdens in the way?

Liza Fuentes, a researcher at the Texas Policy Evaluation Project paints a grim picture for what abortion access will look like in Texas if HB2 is allowed to stand, with the number of clinics dropping from 40 to 10 — with farther distances to travel, meaning longer wait times and subsequently more expensive procedures.

Fuentes told Salon,

“If the whole law goes into effect, there will not be an open clinic west or south of San Antonio, meaning that women who live in the Rio Grande Valley and West Texas, areas that are more rural and where families are really struggling to make ends meet, will be most affected by this law. These women will now have to travel even further, either out of state or to places like Austin, San Antonio, Dallas/Ft. Worth, or Houston, for care -- traveling literally hundreds of miles or staying in hotels several nights. These added costs are significant, and finding the resources to cover them can end up delaying women's care or forcing them to continue an unwanted pregnancy altogether.”

In the face of these insurmountable obstacles, some women in Texas are attempting to self-induce abortions.

This is the heart of the matter -- how much burden is too much burden to be able to exercise a right? A question that should be asked of many important issues of our time; the matter of voting rights comes immediately to mind. The language of rights implies specific political and legal obligations. Though there is much philosophical debate on the matter, the language of rights implies a person’s agency, a kind of freedom. That is, we ought to be able to choose freely between different courses of action. The right to an abortion, implies then, that a person should be free to make the choice to have one.

In Planned Parenthood v. Casey, the Supreme Court agreed that abortion is a right, and should be accessible up till the start of the third trimester, saying that an undue burden is any restriction that hast “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Based on this standard, it could be argued that a person should be able, then, to access an abortion without forgoing buying food for their family, paying their electricity bill, or driving 250 miles.

Liza Fuentes reminds us who’s at greatest risk for losing their right, saying,

“Women who can afford to travel or who can re-arrange their lives to endure long wait times will still obtain abortions. These women will at best, experience significant delays in care, only obtaining their abortion when the cost is greater and the procedure, though very safe, carries more risk. Others will face continuing a pregnancy they do not want.”

Those who have the money and the means then, have the right. And those without, are hardly free to choose. If this isn’t an “undue burden,” then perhaps the words have ceased to mean anything at all.

Eesha Pandit is a writer and activist based in Houston, TX. You can follow her on twitter at @EeshaP, and find out more about her work at

By Eesha Pandit

Eesha Pandit is a writer and activist based in Houston, TX. You can follow her on twitter at @EeshaP, and find out more about her work at

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Abortion Reproductive Justice The Supreme Court