Symposium: Abortion rights come out of the shadow

Jessica Pieklo is Vice President of Law and the Courts at Rewire.

Nearly sixteen years to the day from the last Supreme Court ruling in support of abortion rights and it is Justice Stephen Breyer, again, leading the push back against state-level abortion restrictions. Only unlike his majority opinion in Stenberg v. Carhart, which struck as unconstitutional Nebraska’s so-called “partial birth abortion ban” and opens with a concession that the Court understands “the controversial nature of the [abortion] problem,” then practically apologizes for describing the details of the specific abortion procedure at issue, Monday’s opinion in Whole Woman’s Health v. Hellerstedt does just the opposite. It embraces, entirely, the reality that abortion is a fundamental right, a medical procedure that one in three women will need in their lifetime, and should not therefore be subject to the regulatory whims of anti-abortion lawmakers.

For abortion-rights advocates, the decision represents not just an important win, but signals an important rhetorical shift on the legal debate over abortion rights at a time when state-level restrictions threaten to render that right legal in name only.

At issue in this case were two provisions of HB 2, a Texas omnibus anti-abortion law passed in 2013 despite vigorous opposition including the “people’s protest” and an eleven-hour filibuster by then Texas state senator Wendy Davis. Those provisions required doctors performing abortions in the state to have admitting privileges at nearby hospitals and also required abortion clinics to meet the same architectural standards as surgical centers, even if those clinics did not offer surgical abortions.

Despite the extensive litigation, the challenged provisions largely took effect. And their impact was immediate and disastrous. In 2013, the number of Texans who traveled out of state to have an abortion increased four fold. Prior to the implementation of HB 2, there were forty-one facilities providing abortion services in the state. Sixteen of those facilities had either closed or stopped providing abortion services by the end of 2013. Had the Court sided with Texas here, the patients in the state would have at best nine clinics to serve the entire state.

Meanwhile, over twenty other states have laws similar to the provisions at issue in this case on the books. In particular, these laws have decimated abortion access in the Deep South, with the impact of these restrictions falling hardest on the poor and, specifically, poor patients of color. Had the Court ruled the other way in today’s decision, the impact nationally would have been devastating and fallen on some of the most marginalized people in this country.

Which is why it was important for abortion rights advocates that Monday’s decision not just strike down the Texas restrictions as unconstitutional, but do so in an opinion that dealt with abortion in a frank and unapologetic fashion while instructing the federal courts to do the same. “The statement [by the Fifth Circuit and advanced by the state of Texas] that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law,” wrote Breyer. “Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.”

Those two sentences may not sound that remarkable — of course it is the job of the federal courts to weigh the evidence when there is a question of medical or scientific uncertainty — but in the context of the fight over abortion rights and access, those two sentences from Breyer are practically revolutionary.

Anti-abortion lawmakers have succeeded in advancing restriction after restriction in large part because of a cultural reluctance to speak frankly and openly about abortion, which includes pushing back against the suggestion that restricting access to abortion ever advances patient safety. As Texans felt the impact of HB 2, and as other states followed suit in enacting their own TRAP laws and more and more clinics closed, an amazing thing happened. People started sharing their abortion stories publicly and in ways designed specifically to affect not only the public debate over HB 2 but also the Court’s consideration of the claims against it. Doctors spoke out. Patients spoke out. Family members spoke out. For the first time in the Court’s history, female lawyers shared in detail with the Supreme Court their stories of how safe and legal abortion care made their careers, and their lives, possible.

Those stories were not apologetic over the need for an abortion. They did not shy away from the medical realities of abortion. Instead they affirmed the very core of abortion-rights jurisprudence from Roe v. Wade, which is that reproductive autonomy is a fundamental right and the right to choose is just that: An expression of that autonomy.

Monday’s majority opinion didn’t recount those personal stories. But by requiring lawmakers to have evidence to support abortion restrictions they claim advances patient safety, and by demanding that the federal courts properly weigh that evidence rather than rubber-stamp lawmakers’ assertions, the opinion went a long way to re-centering the legal framework away from lawmakers back to patients and providers.

That is an important shift because the fight over abortion rights and access at the state level is far from over. Anti-abortion lawmakers in states like Kansas and Oklahoma have advanced measures designed to cut off later abortion. Known as Dilation and Evacuation Bans, or “dismemberment bans,” these measures look to ban a common and safe abortion procedure on the ground that it poses a risk to patient safety. The medical community largely opposes these latest restrictions. State courts in both Kansas and Oklahoma have blocked those measures from taking effect. But states like Missouri, South Dakota, and South Carolina are working on getting their own versions passed. And while these restrictions look very little like the Texas restrictions, anti-abortion lawmakers have used very similar health-and-safety reasoning to advance them.

Which brings us back to Stenberg and the last pro-abortion rights victory at the Supreme Court. Stenberg involved a restriction very much like the current D&E bans proposed in some states that rely on the same “patient safety” framework at issue in today’s case. And while the decision in Stenberg was ultimately a win for abortion-rights advocates, its language and framing of abortion as something to apologize for rather than a medical reality in fact helped advance the rollback of abortion rights. Just a few years later the Court would reverse course from Stenberg and uphold the federal “partial birth abortion ban” in Gonzales v. Carhart in an opinion peppered with rhetoric about abortion, not as a necessary part of comprehensive reproductive health care, but as a choice women regret and need protection from making unsupervised.

In today’s decision, abortion rights advocates finally got a decision that recognizes abortion as both a fundamental right and a medical necessity that doesn’t require an apology or targeted legislative restrictions.