In Rejecting Abortion Restrictions, Supreme Court Shuts Down Dubious Claims of “Protecting Women’s Health”
By Amie Newman — June 29, 2016
This week the Supreme Court ruled firmly in favor of protecting women’s access to safe, legal abortion care. It was a decision to behold.
Whole Woman’s Health v. Hellerstedt is unquestionably the most important court case on abortion in decades. The ruling struck down two provisions in Texas House Bill 2 ( a “TRAP” law) which would have effectively shut down about half of the state’s remaining 20 clinics that provide safe abortion care. The ruling determined that the law placed an “undue burden” on women who seek an abortion and was therefore unconstitutional.
The decision is impressive not only for the ways in which it is already helping to overturn other state abortion restrictions, but because it offers what may be a course correction in the way that courts look at the relationship of ideology to empirical evidence when considering restrictions to legal abortion.
The fact that data was cited by the justices as the reason why parts of HB2 are unconstitutional is a hard-fought “win for evidence over ideology,” as Jill Filipovic writes in Cosmopolitan.
In a statement after the decision came down, Nancy Northrup, President and CEO of the Center for Reproductive Rights, the organization arguing on behalf of Whole Woman’s Health in this landmark case, said:
It is clear this law was passed with the intent to shut down clinics. It had that devastating effect. And we are very pleased that the Supreme Court could see through what was happening, and make clear.
HB2 mandates that doctors who perform abortions in the state have admitting privileges at a nearby hospital. It also requires clinics that provide abortions to conform to ambulatory — or stand alone — surgical center regulations. The state of Texas says the laws were created to protect women’s health. That doesn’t sound so terrible, right? Except when one looks at the evidence of whether or not these provisions actually improve women’s health, there is little there, as Justice Stephen Breyer wrote in the majority opinion:
We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.
Supreme Court Justice Ruth Ginsburg went even further by saying:
It is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law “’would simply make it more difficult for them to obtain abortions.”
Justice Breyer challenges Texas’s claim that HB2 “protects women’s health”:
Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center.
Jessica Mason Pieklo, in Rewire News, shares her own (practically giddy!) thoughts on the triumph of data in this case:
How good does it feel to hear the Supreme Court call shenanigans on lawmakers who insist the best way to protect the health and safety of patients is by making comprehensive reproductive health care impossible to access?
The decision is particularly good news for low-income women and women of color — those most affected by these types of “sham” laws (as the abortion rights hashtag campaign #stopthesham refers to them).
In a statement about the decision, SisterSong Women of Color Reproductive Justice Initiative’s Monica Simpson calls out anti-abortion rights legislators who hide behind claims of improving women’s health when it comes to enacting restrictions on abortion access, yet do nothing to address the health statistics that point to real health crises for women of color:
What is clear to us is that politicians who push these restrictions often do not have any genuine commitment to the health, safety or prosperity of women of color, our families or our community. Where are these groups when low-income women and women of color are struggling to access health care? Where are their programs to deal with the high rate of maternal mortality among women of color?
The momentous Supreme Court decision will make it more difficult for states to rely on dubious claims of “protecting women’s health” when attempting to pass laws that restrict access to abortion. The justices in essence said these laws must be validated by actual evidence, not passed in spite of it. That’s not just a step forward. It’s an entirely new path SCOTUS has carved out concerning abortion access laws, as Pieklo writes:
Finally, we’ve got a Supreme Court decision that demands facts over rhetoric and data over belief, and doesn’t fall into the “difficult decision that people disagree on” false equivalence. Monday’s decision is a clear, data-driven defense of the importance of access to comprehensive reproductive health care and an affirmation of abortion as a fundamental right. And that kind of defense has been a long time coming.