This Supreme Court Case Propelled By Right-Wing Media Myths Could Have Major National Consequences
Blog ››› ››› OLIVIA KITTEL
The Supreme Court is expected to rule this month in the landmark abortion case centered around 2013 Texas law HB 2, a statute that was propelled by right-wing media myths and imposes unnecessarily restrictive requirements on the state’s abortion providers. If the country’s highest court allows the Texas law to stand, it will set a dangerous precedent, opening the door for similar restrictions in other states and putting women’s health at dire risk.
Whole Woman’s Health v Hellerstedt – “the most important Supreme Court abortion case in a generation,” – will determine the fate of HB 2, the Texas law that has already forced nearly half of the state's abortion clinics to close by placing medically unnecessary requirements on providers. HB 2 "requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers," under the guise of necessary women’s health protections, but health experts overwhelmingly say those requirements are both dangerous and “medically unnecessary.” Admitting privileges laws like Texas' HB 2 not only impose stricter requirements on abortion providers than on facilities that perform riskier procedures, but they also severly limit the number of abortion providers; most providers "cannot meet the number-of-admissions standard for gaining privileges because so few of their patients need hospital care."
In the March oral arguments, Texas Solicitor General Scott Keller relied on a common right-wing media myth to justify the restrictions, falsely claiming that they’re necessary to prevent another “Kermit Gosnell” scandal in which illegal operations led to multiple deaths in Philadelphia. But Gosnell’s crimes bear no resemblance to safe, legal abortions – such as those performed at the clinics targeted by HB 2 – and the Texas law, if allowed to stand, could actually make crimes like Gosnell’s more likely given that his business model was to prey on low-income women who could not access legal abortions and “felt they had no alternative.” The Texas lawmakers who pushed for this legislation echoed the right-wing media myth that women's health clinics were unsafe and required increased regulation, capitalizing on a lie that originated with anti-choice activists. Numerous reviews have concluded that abortion facilities nationwide are safe, routinely inspected, and subject to onerous regulation.
The Texas law has already forced more than half of the state’s abortion clinics to close, and if the law is allowed by the Supreme Court to take full effect, another 10 of the 19 remaining clinics in the state could close – meaning that 75 percent of all of the clinics in the state will be shut down because of the law. The final remaining clinics would all be clustered in metropolitan areas. This means the average distance women must travel each way to reach a clinic would be 85 miles (the national average is 30 miles), with nearly 1 million women more than 150 miles from the nearest abortion provider, effectively ending “abortion access for low-income women in rural areas of the state, who are already having a hard time finding providers.” Research conducted by the Texas Policy Evaluation Project (TxPEP) demonstrated the law has “resulted in significant burdens for women” attempting to access abortion care, and the burdens would disproportionately impact low-income women, women of color, and Latinas in particular.
But it’s not just Texan women’s fates at stake in the Supreme Court ruling. The same medically unnecessary restrictions on abortion providers exist in at least 22 other states -- and dozens of additional abortion restrictions exist throughout the country.
As Refinery29’s Lilli Petersen explained, “what’s at stake in Whole Woman's Health v. Hellerstedt isn’t actually the legal right to have an abortion, but what states are allowed to do to regulate the procedure.” A “decision in favor” of HB 2, Petersen expounded, “would set a national precedent and open the door for other states to enact similar limitations on abortion.”
If the Supreme Court finds in Texas’ favor it's likely to have an immediate impact on neighboring state Louisiana, for example, which passed a similarly styled law in 2014. If allowed to stand, Louisiana’s law would shutter three of the state’s four abortion clinics. Just days after hearing oral arguments in Whole Woman’s Health v Hellerstedt, the Supreme Court issued a brief order that reversed the Fifth Circuit, allowing the temporary closed clinics in Louisiana to reopen, but the law’s ultimate fate is still in question. Likewise Alabama has also passed a similar bill that requires doctors who perform abortions to have hospital admitting privileges. That law has been struck down by a federal court but its status could also be affected by the ruling in Whole Women’s Health and reportedly “if the law is allowed to take effect, four of the state’s five clinics would close, and the lone surviving clinic could never meet the demand for abortions in Alabama, which average around 9,000 a year.”
If the impact in Texas is an indicator of what might happen elsewhere, the consequences of the Supreme Court upholding HB 2 are dire. Another TxPEP study predicted that if the Supreme Court fails to overturn HB 2, women in Texas will become increasingly more likely to self-induce abortion "as clinic-based care becomes more difficult to access." Incidents of self-induced abortions are most prevalent among women who reported facing significant obstacles to reproductive healthcare in the past, as is the case with Latina women living in a rural area of Texas that has seen several clinic closures.
In a New York Times article, economist Seth Stephens-Davidowitz outlined how demand for self-induced abortion is concentrated in areas where abortion is most difficult to access, “reminiscent of the era before Roe v. Wade.” Stephens-Davidowitz analyzed data based on Google searches for phrases like “how to miscarriage” and “how to self-abort,” and found that the “state with the highest rate of Google searches for self-induced abortions is Mississippi, which now has one abortion clinic.” Stephens-Davidowitz concluded: “there is an unambiguous fact in Google search data that the eight justices of the Supreme Court and everyone else should know. In some parts of the United States, demand for self-induced abortion has risen to a disturbing level.”
As Dr. Daniel Grossman, co-author of the TxPEP study told reporters, "This is the latest body of evidence demonstrating the negative implications of laws like HB2 that pretend to protect women but in reality place them, and particularly women of color and economically disadvantaged women, at significant risk."
Medically unnecessary restrictive laws don’t protect women and they don’t curb the number of abortions. They actually tend to increase unsafe abortion, according to international evidence. As Taylor Crumpton wrote in Glamour magazine, “when providers are too far away, or waiting periods become untenably long, women look to cross the border to secure abortion-inducing medication or try to get abortion pills through the black market.”
Unless the Supreme Court makes a binding rule striking down both restrictions in HB 2, the door to similar restrictions in other states will be left wide open. The outcome could also be negatively affected by the unprecedented GOP obstruction of the Supreme Court nomination of Merrick Garland to fill the seat left vacant by the death of Justice Antonin Scalia. Due to the empty seat, there’s a chance the court could deadlock or postpone a decision, which could permit Texas HB 2 to stand, but wouldn’t set a binding precedent, “leaving uncertainty for other states and highlighting more than ever the importance of the next Supreme Court appointment,” as The New York Times reported. That uncertainty could weigh especially heavily on “states like Alabama, Mississippi and Wisconsin [as they] press to remove blocks on their admitting-privilege laws.”
Refinery29 has laid out a number of possible outcomes: