The clock was ticking on the Supreme Court’s term when it finally released a ruling in Whole Women’s Health v. Hellerstedt, a landmark decision exploring the constitutionality of Texas’ HB2, a law that targeted abortion access. The court struck down two critical provisions of the law, and in the process, it made reproductive rights history, joining the ranks of critical decisions like Roe v. Wade and Planned Parenthood v. Casey. So why exactly was this case so special?
1. Taking a stand on TRAP laws
— NARAL (@NARAL) June 27, 2016
Targeted regulation of abortion providers utilizes laws that purportedly do something like protecting patient welfare, while actually aiming at making it harder to perform, or get, abortions. HB2 took the tack of pushing abortion providers out of business via admitting privileges and ambulatory surgical center requirements. Providers were required to have admitting privileges at a hospital within 30 miles of their practice, severely restricting options when clinics were more than 30 miles from a hospital, or when providers couldn’t secure privileges, often for religious reasons. Ambulatory surgical center requirements mandated that clinics be outfitted as though they were performing surgery even when they weren’t, adding a substantial cost burden.
The court ruled that both these provisions reflected an “undue burden,” but more than that, Justice Ginsburg went on to specifically call out such laws as “impediments.” The court just stated, 5-3, that TRAP laws are unconstitutional, putting states with laws like these on the books or in the works on notice.
2. This isn’t about ‘patient welfare’
SCOTUS made it clear: Politicians can't hide behind sham excuses to make it harder for a woman to have an abortion. pic.twitter.com/BPqyFxbIUl
— ACLU National (@ACLU) June 27, 2016
A key question in this case revolved around patient welfare. Anti-choice lawmakers insist that they are looking after the safety of patients with legislation like this — for example, they claim that it would be unsafe to get an abortion if you didn’t have ready access to a hospital if there was an emergency. (Complications are seen in less than two percent of abortions within six weeks of the procedure.) Often, this legislation is not rooted in science or medical understanding, but until now, “safety” has been a sufficient figleaf.
Not anymore. The court specifically questioned whether either provision improved patient safety, going against precedents set in earlier decisions like Gonzales v. Carhart, which upheld a federal “partial birth abortion” ban that passed on the grounds of worries about the safety of the procedure. Now, if antis want to successfully pass anti-abortion legislation and have it stand up in court, they’ll need evidence-based medicine to support claims of safety, if that’s the route they decide to take. Good luck finding it: The vast majority of reputable medical research indicates that abortion is an extremely safe procedure — safer, in fact, that carrying a pregnancy to term and giving birth.
3. Proactive, not reactive, positions on abortion rights
— Barack Obama (@BarackObama) June 27, 2016
Advocates sometimes feel like they’re constantly on the run when it comes to abortion rights — racing to mop up after the latest anti-choice mess. The decision in this case changed the tone of the conversation. It’s frank, clear, honest, simple, and written in a way that doesn’t feed or enhance stigma. That’s good news for abortion, which is often shrouded in shame and secrecy. The court wrote about it like any other legal issue, refusing to add charged rhetoric to an already fraught conversation.
That sets a tone that people could keep up, if they stay focused on delivering better abortion access to Americans. The court might not have gone so far as “abortion on demand and without apology,” but it did indicate that this is a basic medical procedure that people have a right to access if they want it.
4. Groundwork for the future
— National NOW (@NationalNOW) June 27, 2016
Any good court ruling sets precedent and establishes a grounding for future jurisprudence, and this is no exception. The clear, open, honest communication of the decision will make it an incredibly important building block for challenges to similar laws as the pro-choice community moves forward. This decision creates a framework for assaulting TRAP laws, for challenging “patient care”-centred restrictions on access, and for taking on the attitude that abortion shouldn’t be an easily accessible right.
Any decision that upholds abortion access provides valuable information about the mindset of the court. With only eight justices, it’s interesting to note the slightly liberal shift that’s appearing, and this could be hopeful for the court’s future makeup. It also sends an unmistakeable message to antis thinking about continuing their nonsensical right to oppress women: The government is not on their side.
5. The Supreme Court did forget something important
— Whole Woman's Health (@WholeWomans) June 27, 2016
Though the court has heard a number of challenges to anti-abortion legislation and policy, it has yet to address the issue of financial barriers to access. It has effectively taken the stance that a focus on purely legal matters is its only purview, but what about when legal matters collide with financial power? Many TRAP laws don’t just hit providers: They also transparently hit low-income Americans who cannot afford to seek out abortions at alternate facilities.
Yet, when the Supreme Court takes on such legislation, it rarely discusses the economic justice factor, and whether abortion access should be protected as a right for all Americans, or simply those who can afford it. This has always been a struggle with abortion care: In the days of pre-Roe, for example, people with enough money could receive safe and discreet abortions, while poor patients sought out illegal back alley abortions and took all the accompanying risks as part of the (often very high) price.
6. Portents for November
This fight isn't over: The next president has to protect women's health. Women won't be "punished" for exercising their basic rights. -H
— Hillary Clinton (@HillaryClinton) June 27, 2016
Supreme Court Justices aren’t elected, but the people who appoint them are. This decision illustrates the critical importance of turning out to vote if you care about social issues, because the person you put in office (or don’t) can have a profound impact on jurisprudence. Americans who want to see more decisions like this one must turn out for Hillary Clinton in November, because a Trump nominee could have swayed the court in a very different direction.
It’s not just the top of the ticket that’s important, though. Senators are the ones who make confirmation decisions and often later run for president themselves. Congresspeople often try to move on to the Senate. State legislators usually plan on moving up in politics as well. Localities often hold direct elections for judges. You need to vote from top to bottom to ensure that your views and aspirations are represented.
7. But the battle isn’t over
— PP South Atlantic SC (@PPSATSC) June 27, 2016
This is one law in one state, but there are oodles more TRAP laws out there, including Texas’ own 20 week abortion ban, which remains in place. You can expect more fetal personhood-style laws, including actual declarations of personhood, fetal pain legislation, and heartbeat bans, all of which capitalise on the ‘squick’ factor of making abortion seem like a termination of human life. Expect to see more attempts to defund Planned Parenthood and other organizations that provide reproductive health services. Watch out for a rise in “religious freedom” laws that allow care providers to refuse care, and expect more and more people to be exercising their legal rights under such laws.
It might be tempting to rest and celebrate, but antis certainly aren’t taking a break, and neither should we.
Photo: Jordan Uhl/Flickr