Texas Abortion Laws—Health Protection or Pretext?
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In 1992, a majority of the US Supreme Court saved a woman’s constitutional right to decide to terminate a pregnancy, in Planned Parenthood v. Casey. This week, the US Supreme Court heard oral arguments in Whole Woman’s Health v. Hellerstedt, a case that could effectively extinguish the right for many American women. Of the justices in the Casey majority, only Justice Kennedy remains on the Court, and his stance is widely viewed as pivotal.
At issue are two provisions of a Texas law regulating abortion providers: the admitting privileges (AP) requirement requiring any physician who performs an abortion to have admitting privileges at a hospital no more than 30 miles from the physician’s practice or clinic; and the ambulatory surgical center (ASC) requirement requiring facilities licensed to perform abortions to meet the same physical and staffing standards as an ambulatory surgical center or hospital surgical department.
The Texas law is an example of TRAP laws (targeted regulation of abortion providers) drafted and promoted by anti-abortion groups like Americans United for Life and adopted (in whole or part) in other states as well. Although its defenders claim that the law protects women’s health, there is little doubt that its purpose is to force the closure of facilities that provide abortion services and thereby reduce the incidence of abortion. Indeed, after the law passed, then Lt. Governor David Dewhurst tweeted that the reason for the law was to close abortion clinics.
In the Court, however, the Texas legislature’s motivation may not matter. The legal issue to be decided is whether the Texas law poses an “undue burden” on the right to decide to have an abortion. In Casey (the last major abortion case to reach the Supreme Court), the Court explained that “a finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The meaning of undue burden has plagued courts ever since.
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In contrast, Justices Ginsburg, Breyer, Sotomayor, and Kagan appeared to support the clinics’ view of the meaning of undue burden. The Casey decision said that, although “the State may enact regulations to further the health or safety of a woman seeking an abortion[,]. . . . [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” The petitioner clinics argued, therefore, that the regulations should actually serve the asserted purpose of protecting a woman’s health.
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The ASC requirement is also unnecessary. Outpatient clinics with full-scale operating theaters and staff, hallways wide enough to accommodate hospital-size gurneys, are not necessary. They are also unaffordable by most clinics. But the real point is that these requirements do nothing to improve patient safety. Abortion is probably the safest medical procedure in the country. Procedures like liposuction, colonoscopy and plastic surgery have much higher risks, but outpatient clinics that perform those procedures are not subject to the same requirements imposed on abortion facilities.
Only about 8 or 10 of Texas’s original 40 clinics are likely to remain licensed. They cannot meet the state’s demand for between 65,000 and 70,000 procedures a year. Moreover, the remaining clinics are clustered in a few cities in the second largest state in the country, in both size and population. At least 900,000 Texas women live more than 150 miles from a remaining abortion provider. The law also requires women who take medication to induce abortion to visit a clinic twice. These requirements are not only costly in terms of time and money. They may delay women from timely access to a safe, legal medical procedure, or worse, lead some women to resort to the dangers of self-induced pregnancy terminations.
The petitioners have the better argument, on both the law and the facts. But it will require at least five Supreme Court Justices to find the law unconstitutional. With only eight Justices on the Court, a 4-4 split decision would allow the lower court’s decision upholding the Texas law to remain in effect. This would leave the country with conflicting interpretations of the law, since two other federal courts of appeal in the 7th and 9th circuits agreed with petitioners’ arguments. The Supreme Court justices might avoid making a decision by remanding the case back to the lower court to take evidence of whether the Texas law actually caused a substantial reduction in access to abortion services or an increase in health risks to women. Justice Kennedy hinted at such an approach.
Whatever approach the Court takes, its decision will influence whether public health laws can be based on pretext instead of facts. It is hard to believe that the Texas law is anything more than a ploy to bar physicians from providing outpatient abortions. Facts should matter. Women’s health should not be a pretext for a political agenda. While many in public health offer strong evidence of how laws like these harm women, others support Texas’s law. Defending the lawsuit are John Hellerstedt, current commissioner of the Texas Department of State Health Services, and Mari Robinson, executive director of the Texas Medical Board, officials charged with protecting the public health. Public health professionals must stand against using women’s health as a façade to hide political or economic self-interest.