The Radical Changes to Expect After SCOTUS' Major Abortion Decision
On Monday, the Supreme Court struck down one of the most severe abortion laws in the country. Will that be enough to protect women's access nationwide?
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In a hard-fought victory for women's rights, the Supreme Court ruled on Monday to strike down parts of a restrictive Texas abortion law, establishing a precedent that has already dismantled similar legislation in states like Mississippi and Wisconsin.
The Court's 5-3 decision in Whole Woman's Heath v. Hellerstedt overturned two provisions in Texas's House Bill 2 (HB 2): one requiring abortion providers to meet the same building standards as ambulatory surgical centers, thus requiring clinics to undergo costly renovations or shut down entirely, the other requiring doctors to have admitting privileges at nearby hospitals. After HB 2 was passed, all but 19 abortion providers in Texas were forced to close their doors—down from more than 40 in 2013.
The Court held that these extreme provisions do not protect women's health—which was the claim made by anti-abortion legislatures—and instead place an undue burden on a woman's constitutional right to terminate a pregnancy.
It is the most momentous legal victory for the pro-choice movement in a generation, and it's already having an effect on similar abortion restrictions enacted in other states. The day after Monday's ruling, the Court rejected attempts by both Mississippi and Wisconsin to reinstate their admitting privileges requirements, expanding the reach of Whole Woman's Heath v. Hellerstedt. Mississippi's law, HB 1390, would have effectively shuttered the state's only remaining abortion clinic, Jackson Women's Health Organization.
"It's a real vindication for women and for those of us who believe strongly that abortion rights are women's rights and women's rights are human rights," said NARAL president Ilyse Hogue.
However, the future of the clinics that have been forced to close remains uncertain. In Texas, a state with 254 counties, the remaining 19 abortion clinics will continue to operate. However, while no clinics are slated for closure, we shouldn't expect expanded access anytime soon.
"What's important to know is that, in Texas, we already have many existing layers of mandates and restrictions still in place that are unfortunately not impacted by the ruling," said Sarah Wheat of Planned Parenthood of Greater Texas. Like 27 other states, Texas has a mandatory waiting period for women seeking an abortion. This often requires multiple visits to a clinic, and it is not unusual for a woman to sleep in her car because she can't afford a motel room during a 24- or 48-hour waiting period. For women who do not own a car or cannot take off work or pay for childcare, accessing abortion remains next to impossible.
It's a real vindication for women and for those of us who believe strongly that abortion rights are women's rights.
Advocates and attorneys agree: It will take time before more clinics open in Texas. According to Jason Freeman, a professor at Southern Methodist University's Dedman School of Law, "This decision paves the way for those clinics to reopen or for clinics to open without the restrictions imposed by HB 2, but, in terms of the timeline, that's hard to say."
Still, Monday's decision has enormous legal and political ramifications. The 5-3 majority decision is remarkable, especially at a time when President Obama is unable to fill a vacant seat on the Court with his current nominee, Merrick Garland.
"The issues don't get bigger than abortion in the US," said Freeman. "If you had a 4-4 decision on this, then you would almost certainly see the fate of this issue tied to the next appointed justice. But here you appear to have a 5-justice majority regardless of how the appointment process plays out."
The majority decision has also galvanized pro-choice advocates, who watched in horror as anti-abortion politicians masterfully manipulated the legislative process. "A strategy of the extremists who target providers and pushed these restrictions is the knowledge that, until a court case is filed and winds its way up to the Supreme Court, they have years to close clinics," said Kathy Miller, the executive director of Texas Freedom Network.
As of March of this year, 24 states had restricted abortion access by way of targeting how providers operate, and the SCOTUS decision threatens that strategy. It will be difficult for anti-abortion legislators to hide their politics in rhetoric about protecting women's safety when the Supreme Court has undermined that notion.
Justice Ruth Bader Ginsburg's biting concurring opinion smacks down the argument that HB 2 safeguards women's health. "When a State severely limits access to safe and legal procedures," she wrote, "women in desperate circumstances may resort to unlicensed rogue practitioners... at great risk to their health and safety." Justice Ginsburg also maintained that "complications from an abortion are both rare and rarely dangerous." (Justice Stephen Breyer wrote the majority opinion.)
"It's a really strong opinion," said Dawn Porter, the lawyer-turned-documentarian behind Trapped, which won the Sundance Film Festival's Special Jury Award for its piercing examination of the way in which abortion restrictions have closed clinics across the South. "I think the fear was that the decision was not going to be clear enough and we'd be in purgatory," she added. "That did not happen."