The Supreme Court will hear oral arguments Wednesday in a case that boils down to: Who decides what’s best for a woman’s health? Anti-abortion Republican legislators who have no experience in the field, or medical professionals, in conjunction with the women they serve?
Whole Woman’s Health v. Hellerstedt amounts to the most significant abortion case to reach the Supreme Court in decades. Here’s everything you need to know about it.
What’s this case all about? Doesn’t it have something to do with Wendy Davis?
Yes. This issue is before the Court this week thanks to Texas’ radical anti-abortion law, HB 2. The law originally made national headlines in the summer of 2013 when Wendy Davis filibustered it late into the Texas night. Then-Texas Gov. Rick Perry had other plans, though. After Davis’ successful ploy, Perry called an emergency session of the legislature and was able to get the bill passed by the overwhelmingly Republican body.
HB 2 contains several restrictions, including a ban on abortion after 20 weeks of pregnancy and restrictions on the use of medication abortion. Those provisions, however, are not before the Supreme Court this week. Instead, the Court will weigh in on two other sections of the law: one requiring doctors to have admitting privileges at a nearby hospital, and another requiring clinics to effectively become miniature hospitals (they call them ambulatory surgical centers, or ASCs).
What’s so bad about that? Sounds pretty common sense.
Well, the anti-abortion Republican legislators in Texas do argue it’s common sense that these provisions will help keep women safe; doctors with admitting privileges will provide more continuity of care if a woman has a complication that requires hospitalization, and clinics that meet the ASC requirements will be safer, right?
However, there’s a glaring problem with this reasoning: Medical professionals — including all major medical organizations — completely disagree. In fact, if implemented fully, these provisions will do the exact opposite of what these lawmakers claim they intend, making Texas women less safe.
The reasoning of these medical groups is sound. The admitting privileges requirement makes no sense because patients who experience complications following a medical procedure and need to go to a hospital are able to do so regardless of whether the initial doctor has admitting privileges. Moreover, there’s no guarantee a patient will go to the same hospital where the doctor has admitting privileges, particularly if she has traveled a fair distance to get to the clinic. Finally, admitting privileges are not a mark of physician quality; rather, they are an indication of a pre-existing relationship to the hospital, nothing more — a relationship usually depending on the doctor sending a certain number of patients to the hospital because of complications, something that is exceedingly rare for abortion procedures.
The true effect of admitting privileges requirements is to give an abortion veto to a third party who has nothing to do with the doctor or the woman seeking the procedure. Hospital administrators now determine if a doctor can perform an abortion. When many hospitals are Catholic-run or fearful of anti-abortion protest, it’s no wonder supremely qualified doctors have difficulty getting admitting privileges.
The ambulatory surgical center requirement is just as pernicious. This requirement forces clinics to have large operating rooms that resemble those in hospitals, and mandates that they change things like hallway width, elevator size and HVAC systems. An excellent documentary called Trapped that debuted earlier this year at Sundance chronicles just how extensive and burdensome these regulations are.
What makes these laws pernicious is that they are extremely expensive to comply with, they are medically unnecessary and they move a safe medical procedure out of the warmth of a doctor’s office or a clinic’s procedure room into the cold atmosphere of a major surgical suite. Clinics that cannot afford the often millions of dollars to retrofit their building, if it can even be physically accomplished, are forced to shut down.
What’s the bottom line for Texas?
If the law is fully implemented, these two restrictions combined will result in Texas going from over 40 clinics before HB 2 to either eight or nine. As this map shows, none of those clinics are south or west of San Antonio — so for almost a million Texas women of reproductive age, an abortion clinic will be over 150 miles away; for women in West Texas, a clinic could be as much as 500 miles away.
For some women, this distance will mean they have to continue a pregnancy they didn’t want. For others, it will mean they turn to illegal medications, unsafe medical facilities or home remedies.
The basic argument from the abortion clinics that are challenging HB 2 is that states should not be able to make it impossible for huge numbers of women to access a constitutionally protected right on the basis of non-existing medical justifications. That is not how a constitutional right works.
What about the rest of the country? Could Roe v. Wade be effectively gutted?
After Justice Antonin Scalia’s death last month, the attorneys for the clinics will make their case before an eight-member Supreme Court Wednesday. Scalia’s death will undoubtedly change the tenor of oral argument. (Justice Thomas may even ask a question!) At a minimum, Scalia’s biting, caustic questions critical of all things abortion will be missing. At best, liberal justices will fill the void with robust defenses of the right to choose and strong critiques of Texas’ law.
Regardless, as always, all eyes will be on Justice Anthony Kennedy. Even with only eight justices on the Court, his vote will determine the outcome of the case. If he sides with the three conservatives — John Roberts, Clarence Thomas and Samuel Alito — the Texas law will be upheld, because the conservative lower court’s decision will be affirmed, though without opinion. This would be disastrous for the women and clinics of Texas, but without five justices in a majority, the impact would be limited to that state. In other words, Roe v. Wade is safe no matter what.
If, on the other hand, Kennedy sides with the four liberals — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — and decides that the impact of the law is too severe and the justifications a sham, the Texas law would be struck down as unconstitutional, and there would be a new precedent protecting a woman’s constitutional right to choose. And unlike if he joins the three conservatives, a five-justice decision striking down the law would have nationwide impact and could, depending on its reasoning, sound the death knell for many of the hundreds of new abortion restrictions that state legislatures have passed in the past several years.