"A step in a long staircase toward equal access to freedom": Supreme Court's abortion ruling a small victory in a neverending fight

The reproductive freedom movement is building momentum, but too many Americans haven't felt real changes yet

Published July 30, 2016 1:30PM (EDT)

Pro-choice activists celebrate at the Supreme Court, June 27, 2016.   (AP/Evan Vucci)
Pro-choice activists celebrate at the Supreme Court, June 27, 2016. (AP/Evan Vucci)

There were more protesters than usual in the summer of 2014.

With Texas’ House Bill 2, known more commonly as HB2, having gone into full effect in March, outside the few remaining clinics in Houston, there were more than the usual two or three giant posters of bloody babies, purportedly fetuses. Once, I saw as many as seven. Often, there were as many as 30 people shouting at my car as I pulled into the parking lot. On one visit, I had just driven a woman to the clinic as a volunteer with the Clinic Access Support Network and was entering the clinic to sign in as her ride. As I walked up to the heavy front door — bulletproof, it seemed to me — a woman in a “Jesus Saves” T-shirt shouted at me so loudly that I almost tripped. At the very top of her lungs, she screamed, from about 20 feet away, “Don’t do this. We love you. And we love your baby.” After catching my balance and my breath, before entering the clinic, I turned and gave her the finger.

Inside, I told a very friendly receptionist that I was a volunteer driver, and would be back to pick up the young woman after her procedure. I did return, driving and walking through the gauntlet of protesters once again, to sign in and pick up the young woman, who was still a little drowsy from the sedation. I took her back to her aunt’s house in the suburbs where she was staying. Tomorrow, she told me, she’d be returning to the small town she lives in, where there was no remaining abortion clinic. When I got home later that morning, I turned on the news to hear that earlier that morning, a man had walked into a Planned Parenthood in Colorado Springs and opened fire, killing 3 people.

* * *

In considering Texas’ law, the Supreme Court had to determine whether the impact of HB2 made it too difficult to obtain an abortion in the state. This test of whether the law posed an “undue burden” on the people of Texas was the crux of the Court’s consideration about whether to let the law stand or strike it down.

HB2 prohibited abortion after 20 weeks gestation, placed increased restrictions on those seeking medical abortions, required all abortion providers to have admitting privileges at a local hospital and mandated that all abortion clinics meet the requirements of ambulatory surgical centers. It was these last two provisions, mandating the need for all clinics to have admitting privileges and function as ambulatory surgical centers, that were challenged before the Court.

In a 5-3 ruling, the Supreme Court overturned both provisions. Justice Stephen G. Breyer delivered the majority opinion and was joined by justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

Dismissing the claim that HB2 protects women’s health, Justice Breyer wrote in his decision, "We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access ... and each violates the Federal Constitution."

Justice Ruth Bader Ginsburg made it plain, writing a 367-word concurrence to drive home the fallacy in the idea that such a law was designed to protect women’s health.

* * *

In the few weeks since the ruling, the question remains: Does such a verdict mean that the reproductive justice movement is gaining momentum? Or is the Court’s decision an outlier, not a bellwether? The answer isn’t exactly straightforward.

The anti-choice movement has succeeded in passing a veritable avalanche of abortion restrictions in the past several years. More were passed and implemented throughout the U.S. between 2011 and 2013 than in the entire previous decade. These are staggering numbers and certainly highlight the momentum and power of the anti-choice movement’s legislative strategy. While the Supreme Court’s recent ruling won’t overturn all of these laws, or even most of them, the ruling clearly sets precedent against posing an undue burden on those seeking abortions, and will have significant impact.

The importance of such precedent must not be understated, say reproductive justice activists around the country. Yamani Hernandez, executive director of the National Network of Abortion Funds, told Salon, “It puts a considerable dent in the anti-choice tactic of making clinics hard to open or sustain. It also sets a precedent about the many burdens to abortion access that exist people ever even make it to an open and operating abortion clinic.”

In fact, immediately after the ruling, several laws known as TRAP laws, or Targeted Regulation of Abortion Providers laws, were contested or dismissed around the country.

Amanda Williams, executive director of the Lilith Fund in Texas, told Salon that this ruling confirmed what she already knew.

"The Court’s ruling has validated what Lilith Fund has seen on our hotline for years -- that these laws are a sham built to destroy access, dismantle resources and opportunities for our clients, who are predominantly low-income people of color, to obtain reproductive autonomy,” Williams said.

Monica Simpson, executive director of SisterSong, told Salon about what she sees as an important potential shift in momentum for the reproductive justice movement, given the onslaught of abortion restrictions: “…We were constantly on the defense.  This position is a hard one to maintain. It drains your energy and resources. But this decision gives us an opportunity to shift our position to a more proactive stance — thus shifting our momentum. We have a long way to go, but this victory definitely provides a long-awaited jump start.”

One less-noted element of the fight to repeal HB2 is the impact of the reproductive health, rights and justice activist communities coming together and beseeching their lawmakers and the Supreme Court to take notice of its devastating impact.

A total of 45 amicus briefs were filed to encourage the Supreme Court to find the law unconstitutional and dangerous to women’s health. National medical organizations like the American Medical Association and the American Academy of Physicians wrote briefs stating the dangers of HB2. Activist organizations like the National Latina Institute for Reproductive Health, National Advocates for Pregnant Women and the Texas Coalition Against Sexual Assault wrote in support of Whole Women’s Health and the need for safe, accessible reproductive health care in Texas. Additionally, thousands of activists, including me, lent their voices to the amicus briefs, stating the importance of safe and accessible reproductive health care.

Shailey Gupta-Brietzke, an attorney and former president of Texas’ Lilith Fund, contributed to a brief known as "the lawyers' brief,” containing the stories and signatures of over 110 attorneys who obtained abortions. Gupta-Brietzke told Salon: “This felt like the most significant thing I've done as a lawyer … It was an important moment for me to publicly sign on with my name and story that I had an abortion. The win and sharing that intimate part of who I am means that this victory was very important to me.” For a longtime reproductive justice activist like Gupta-Brietzke, merging the personal and the professional to fight against HB2 was especially important. “This brief is the first publication where I acknowledge that I have had an abortion,” she says, “And I believe that was the case for other signers as well.”

Spotlighting so many diverse voices is a notable shift for a movement that has often been seen as one centered around the needs of middle- and upper-class white women. When the fight for reproductive rights came to Texas, a big, often unwieldy and very diverse state, things looked different. Amanda Williams noted the significance of the broad coalition that fought HB2 in Texas and the subsequent Supreme Court victory, saying, "Our resistance is not new, but our movement's ability to communicate and engage each other around what has been happening since HB2 has truly changed the landscape of activism in Texas, and perhaps across the country as well." The clinic closures impacted people of all incomes and races, but of course acutely impacted low-income people, rural communities and women of color — all those who were more likely to be left without recourse when clinics closed and it took more time and resources to access an abortion.

* * *

In the past few years, as a volunteer with the Clinic Access Support Network, I’ve driven women from all over Texas who have made their way to Houston for their abortion. Some arrive just in the nick of time, before the procedure is no longer an option in Texas, which bans abortion beyond 20 weeks of pregnancy. Some have arrived too late and have been turned away. Some are nervous and tense, peppering me with questions about the procedure, what to expect and how much it will actually cost. Others have been worried that if they miss this appointment they won’t be able to make it back for another one without having to take more days off from work, potentially jeopardizing their job. Others make jokes or ask me about myself, what I do and why I am taking my Monday afternoon to drive a stranger to her abortion. In this small slice of conversations with women affected by Texas’ House Bill 2, the stories of the women impacted are hardly the same, but the burden imposed on them is consistently present.

Now, Texas’ clinics will slowly begin to re-open, as they re-staff and get their licensing requirements met — not things that can happen overnight. According to the Guttmacher Institute, ten other states have admitting privileges requirements in effect that are similar to the Texas requirement, and there are ongoing challenges to similar laws in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin — all of which will likely be struck down. In fact, just this Friday, Louisiana announced that it won’t be enforcing newly passed restrictions that would extend their waiting period from 24 to 72 hours and ban a common second trimester procedure called “dilation and extraction.”

Notably, in the wake of this victory and the vocal and staunch support of her campaign by the biggest reproductive rights groups in the country like Planned Parenthood and NARAL, Hillary Clinton has chosen Tim Kaine as her pick for vice president. Kaine’s record on abortion access is a bit muddled, as is Clinton’s herself. Supporting laws that restricted access to abortion while governor of Virginia, Tim Kaine supported a ban on dilation and extraction abortions, a parental consent law and abstinence-only sex education. He also supported a law that would subject people seeking an abortion to be forced to have a medically unnecessary ultrasound. In 2007, NARAL Pro-Choice America gave Virginia an “F” in its annual reproductive freedom report, and determined Tim Kaine to be a “mixed choice” governor. Nonetheless, NARAL Pro-Choice America and Planned Parenthood have determined Mr. Kaine to have a perfect pro-choice voting record since he became a senator in 2012.

On the Republican side, Donald Trump’s choice for VP is the architect of some of the most regressive and anti-choice legislation seen in recent years. Mike Pence’s Indiana is a veritable case study in all the potential restrictions a state can impose on a person seeking an abortion. So, while the Supreme Court’s ruling may have injected some momentum into the battle to secure reproductive rights, the national political landscape hasn’t reflected as much. In fact, if the VP picks of the major parties can offer any insight at all, it’s that both candidates are hedging their bets on abortion rights, with Sec. Clinton choosing a VP with a lukewarm record on abortion access, and Trump choosing one whose hostility to reproductive rights is relatively unparalleled.

As for the reproductive justice movement, if it’s going to build enough momentum to change the landscape, the Court’s ruling must serve as a spark for all the base-building work that’s yet to be done. Yamani Hernandez is taking the long view, and incorporating other movements and issues in her call to action, saying, “We need to join forces with our allies in economic and racial justice to repeal the Hyde amendment and stop political intrusion into the family planning of people using public insurance. We can leverage this victory by raising a generation that speaks the word abortion as personal healthcare without stigma.

“This is most certainly a win,” Hernandez asserts, and then adds, gesturing to the connection between abortion access and economic justice, “However, it's a step in a long staircase toward equal access to freedom. Open clinics can't do anything for people who can't afford to go to them.”

For now, the protesters remain outside Houston’s abortion clinics, and the job of ensuring that people can get to those clinics safely and afford the care they seek is left to those of us that believe that a right means very little without access.

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 eeshapandit.com.

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