In recent years, the Supreme Court has mostly stayed out of the decades-long battle over abortion rights. But today the Justices stepped back into the abortion wars in a big way. They announced this afternoon that they would review a challenge to a Texas law that, abortion rights supporters say, would close seventy-five percent of the clinics in Texas. Texas officials counter that the law is intended to protect women’s health, and that women will still be able to obtain abortions, even if they may have to drive a little further to do so. Let’s talk about today’s grant in Whole Woman’s Health v. Cole in Plain English.
Nearly a quarter-century ago, the Supreme Court issued its decision in Planned Parenthood v. Casey, a challenge to the constitutionality of Pennsylvania’s efforts to restrict abortions by, for example, requiring a married woman to notify her husband that she intended to have an abortion and requiring women under the age of eighteen to first obtain consent from at least one parent. A divided Court reaffirmed that the heart of its 1973 decision in Roe v. Wade, holding that a woman has a right to terminate her pregnancy in its early stages, was still good law. But it also ruled that states can impose restrictions on that right as long as the restrictions do not impose an “undue burden” on the mother: a law will be struck down if it creates, or is intended to create, a “substantial obstacle” to seeking an abortion before the fetus is able to survive outside the womb. Since then, though, the Court has said very little else about exactly what that “undue burden” standard means.
In 2013, Texas – despite a well-publicized filibuster by state senator Wendy Davis – passed a law known as H.B. 2. Two provisions of H.B. 2 are now before the Court. One requires physicians who perform abortions to have admitting privileges at a hospital no more than thirty miles from the clinic, while the second requires abortion clinics to have facilities equal to an outpatient surgical center. Several Texas clinics went to court, seeking to block the law.
Texas maintains that it enacted the law to protect the health of its female residents who seek abortions. It tells the Court that the admitting-privileges requirement, for example, “ensures doctors are qualified, promotes continuity of care in the case of complications that require hospitalization, and reduces communications errors and delays when a patient must be treated at a hospital” – which, it says, happens at least 210 times each year. But the Texas clinics characterize the state’s rationale as little more than a ploy to shut down the state’s clinics. The requirements will not protect women’s health, they say, but will instead harm women by “drastically reducing access to safe and legal abortion services throughout” Texas.
The Texas clinics also complain that the new requirements would close down seventy-five percent of the state’s clinics; the remaining clinics would be concentrated in urban areas, leaving women in rural areas without any clinics nearby. The state responds that, even if the new requirements take effect and some clinics close, eighty-three percent of Texas women of child-bearing age will still live within 150 miles of an abortion clinic.
A federal appeals court upheld the new requirements. Earlier this year, the Supreme Court agreed to delay them from going into effect until it could rule on the clinics’ petition for review. Today it granted review, without acting on a challenge to a Mississippi law imposing a similar admitting-privileges requirement.
There are two main points of contention now before the Court. The first arises from the state’s insistence that the law was intended to protect women’s health. The lower court, the clinics contend, should not have deferred to the state’s justification for the law, without looking independently to see whether it actually does protect women. The state answers that it is enough for it to have a “rational basis” for the new law; courts don’t need to go any further to decide, for example, which competing medical opinion is correct, because states have “‘wide discretion’ to pass medical regulations.”
According to the state, the only relevant question – and this is the second point of contention – is whether the new law imposes an “undue burden” on Texas women seeking abortions. While the state emphasizes the number of clinics that will remain open and their proximity to major metropolitan areas in Texas, the clinics urge the Court to look at the broader impact of the closures: the clinics that stay open, they say, simply won’t be able to meet the demand for their services. Indeed, they note, would-be patients currently have to wait three weeks for a first appointment at some clinics, and that will only get worse if more clinics go out of business. The net effect of the new restrictions, they warn, would for many women be the same as a complete ban on abortion: they “would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy.”
The Court is likely to hear oral arguments in the case in February or March, with a decision expected by late June. However it rules, the decision is likely to be a blockbuster. On a practical level, several other states – including Wisconsin, Louisiana, and Alabama – have similar laws, and a decision upholding the requirements could prompt more states to follow suit. But the true impact could be much broader, providing insight into how the Roberts Court may rule in future cases challenging other abortion restrictions as “undue burdens.” And it will do so during the middle of the 2016 presidential election, bringing the Court squarely into the fore and potentially galvanizing both sides of the debate. Stay tuned.