The New York Times' Supreme Court expert Linda Greenhouse explained the unequivocal facts “at the core of the most important Supreme Court abortion case in a generation,” and the dire consequences at stake if the court fails to consider these facts.
On March 2, the U.S. Supreme Court will deliberate on Whole Woman's Health v. Hellerstedt, a case involving a Texas law that has already forced about half of the state's abortion clinics to close by placing requirements on providers that have been deemed “medically unnecessary” by both the American Medical Association and the American College of Obstetricians and Gynecologists.
In a February 27 article, Greenhouse explained unequivocal facts “about the law's rationale and its impact” that the Supreme Court must consider:
Fact No. 1: Texas has regulated abortion clinics for years through strict licensing requirements and annual inspections, achieving a commendable safety record. Along with other medical clinics that provide outpatient services, abortion clinics were required to have emergency procedures in place in case a patient needed hospital care. The clinic's doctors could either have hospital admitting privileges (which most doctors who provide abortions can't get) or a “transfer” agreement with another physician who had admitting privileges. The law eliminated the transfer-agreement option for abortion clinics.
Fact No. 2: If the law goes into effect, the abortion clinics in El Paso will close, leaving no abortion services from San Antonio west to the New Mexico border. This is no problem, Texas maintains, because women who would have gone to El Paso can travel about 12 miles farther, across the New Mexico line, to an abortion clinic in Santa Teresa, N.M. The fact that New Mexico has neither the admitting-privileges nor mini-hospital requirements -- the very requirements that Texas maintains are necessary to protect the safety of abortion patients -- seems not to concern the state.
Fact No. 3: After the bill, originally known as Senate Bill 5, or S.B. 5, cleared the State Senate, David Dewhurst, then the lieutenant governor, tweeted a map that opponents had circulated showing all the abortion clinics that would have to close. “We fought to pass S.B. 5 thru the Senate last night, & this is why!” he exulted. A subsequent tweet found him back on message, explaining that “I am unapologetically pro-life AND a strong supporter of protecting women's health. #SB5 does both.”
Why would the lieutenant governor -- perhaps on the advice of the state's lawyers, but that's just a guess -- water down his triumphant tweet by throwing health into the mix? The answer lies in abortion politics and abortion law. Both are highly relevant to Whole Woman's Health v. Hellerstedt, the case before the Supreme Court.
The emphasis on women's health is a reflection of the evolution of the anti-abortion movement during the years since the court, in its 1973 Roe v. Wade decision, declared a constitutional right to abortion. The movement's original emphasis on the fetus failed to achieve the goal of overturning Roe either by constitutional amendment or by changing the direction of the court. Groups including Americans United for Life, a strategic and highly effective policy generator for the movement, began to urge sympathetic politicians to invoke women's welfare as the reason for imposing new restrictions on abortion. Among the many model laws that Americans United for Life makes available through its “Women's Protection Project” are those requiring admitting privileges and “ambulatory surgical center” standards for abortion providers. More than a dozen states have enacted versions of the model laws.
Laws like these, which single out abortion for special regulations that don't apply to medical procedures of similar or greater risk, are known in the abortion-rights community as TRAP laws, for “targeted regulation of abortion providers.” The Texas case is the Supreme Court's first occasion to examine one. The decision -- if, in the wake of Justice Antonin Scalia's death, there is a decision and not a deadlock -- will determine the future of abortion regulation. (A tie would leave the Texas law in place.)
Evidence matters to courts. Courts take evidence all the time. That's why we have trials, and judges. The notion that when it comes to restricting abortion, facts shouldn't count, is to give “abortion exceptionalism” a new meaning. It is a meaning the Supreme Court will reject if it is true to its precedents and principles.