From the moment that the US Supreme Court issued its Roe v. Wade decision in 1973, sustained attacks have been leveled at women’s reproductive rights by antiabortion activists. From Operation Rescue demonstrations that blocked access to clinics right down to local zoning restrictions, these attacks have inexorably chipped away at legalized abortion. The impact is alarmingly real: Eighty-nine percent of all US counties lacked an abortion clinic in 2011, according to the Guttmacher Institute; 38 percent of American women live in those counties.
That’s why last week’s oral arguments in a Texas case before the Supreme Court are so important. The case, Whole Women’s Health v. John Hellerstedt, involves a challenge to provisions in a Texas bill, known as HB2, that would severely restrict women’s access to legal abortion: it would ban abortions at 20 weeks of pregnancy or later; it would require that abortion centers have the same standards as ambulatory surgical centers; and it would require that abortion providers have admitting privileges at a local hospital within 30 miles of the clinic where they perform abortions.
Although the law uses medical policy as a fig leaf to cover up efforts to severely limit access to the constitutionally protected right to abortion, doctors’ groups like the American College of Obstetricians and Gynecologists oppose it. ACOG noted in filing an amicus brief in 2013 that abortions are considered extremely safe, and complications requiring hospitalization are rare. As Justice Stephen Breyer pointed out in last week’s oral arguments, colonoscopies are not performed at ambulatory surgical centers, yet have 28 times the risk of complication when compared to abortion.
One bright spot: There are now three highly accomplished women on the court — justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Their presence made a notable difference as they peppered Texas solicitor general Scott Keller with piercing questions.
Despite decades of protest, in 1992, the court reaffirmed the right to legal abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey, invalidating restrictions that would impose an “undue burden.” Justice Anthony Kennedy wrote then in detail about what could constitute such a burden, including “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” Although justices don’t necessarily signal their intent during oral arguments, it can be hoped that Justice Kennedy holds to that earlier opinion.
If the court decides to allow this burdensome law to stand, it would set a dangerous precedent and, according to Fund Texas Choice, leave the Lone Star state with only about 10 clinics serving 5.4 million women of childbearing age. In an election year propelled by anger and outsized personalities, voters would do well to step back and consider the stakes in terms of future appointees to the highest court in the land — and the danger that abortion might once again be relegated to the shadows.