The U.S. Supreme Court ended its term on a high note Monday. In the most important case involving abortion in more than 20 years, the court effectively said Monday that Texas cannot pull an end run around women’s rights. Presumably, this means neither can other states.
This 5-3 ruling stands in direct opposition to the broadest and most effective efforts to restrict abortion. As such it is a significant victory for women’s rights.
The decision came in a case called Whole Woman’s Health vs. Hellerstedt. (Whole Woman’s Health is a chain of clinics and Dr. John Hellerstedt is the commissioner of the Texas Department of State Health Services.) At issue was a Texas law enacted in 2013. One part requires abortion clinics to meet the medical standards of ambulatory surgical centers, which is unnecessarily costly. The other requires doctors who perform abortions to have admitting privileges at a local hospital. Wanting nothing to do with abortion controversies, many hospitals will not go along.
Both provisions were ostensibly intended to protect women. That fig leaf, however, has been thoroughly debunked – including by Justice Ruth Bader Ginsburg in a concurring opinion. She pointed out that an abortion poses little danger to a woman, saying, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-priviledges requirements.”
Of course, the real purpose of the law was not to protect women, but to deny them access to abortion clinics. And it was working. Roughly half of the state’s 41 clinics have closed, and had the law been allowed to remain, it is thought the number would have been cut to as few as nine. Moreover, the remaining clinics would reportedly have all been in the state’s largest cities, with none whatsoever south or west of San Antonio – an area said to be the size of California.
By a 5-3 vote, the justices saw through that and ruled the Texas law constituted an “undue burden” on women’s right to have an abortion. That phrase is key because it invokes and delineates a standard previously adopted by the high court.
Abortion was deemed a constitutional right by the Supreme Court in the famous 1973 case Roe vs. Wade. But in a complicated 1992 case, Planned Parenthood vs. Casey, the court said abortion restrictions could be imposed as long as they did not constitute an “undue burden” on a woman’s constitutional right.
Anti-abortion forces took that vague standard to mean they could chip away at abortion rights with incremental steps to restrict access to clinics and make it difficult for women to get an abortion. That was possible, in part, because in 1992, the court did not provide a guide as to where permissible regulation becomes an “undue burden.”
Monday it did. And with that it may well have put an end to such incremental efforts.
If so, Whole Woman’s Health vs. Hellerstedt may go down as the most important abortion rights case since Roe vs. Wade. Because opponents cannot ban abortion outright and now they cannot block it by throwing obstacles in a woman’s way. To limit abortion, they should instead do what they should have done all along – promote universal access to effective contraception.
