By Carole Joffe
“(I)t 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.’” So wrote Justice Ruth Bader Ginsburg in her concurrent opinion with the 5-3 majority in the landmark case, Whole Woman’s Health v Hellerstadt.
This case represents a monumental victory for the abortion-providing community in particular, the abortion rights movement more generally, and of course, the more than one million American women each year who seek abortion care. When Texas politicians first introduced H.B.2, the notorious bill under contention (this was the bill that inspired state senator Wendy Davis’ marathon filibuster in the Capitol), there were forty abortion clinics in Texas; complex legal proceedings left about twenty in operation up till this ruling. Had the Court decided otherwise, the number of clinics that met the bill’s requirements—hospital admitting privileges for abortion doctors and Ambulatory Surgery Center (ASCs) regulations which stipulated that clinics must essentially conform to the physical specifications of small hospitals—would have gone down to less than ten.
The Court’s decision will have implications beyond Texas. Approximately 162 abortion clinics have closed since the first “backlash to Obama” election in 2010, which greatly increased the number of state legislatures with Republican majorities and Republican governors. Hundreds of abortion restrictions have been introduced since that time, many similar to the Texas ones that have been just struck down. To be sure, not all of the clinic closures are directly due to such TRAP (Targeted Regulation of Abortion Providers) laws, as they are called. Some have closed because of the retirement of a particular physician and the inability to find a replacement. Others, particularly those in urban areas where other clinics tend to locate, have closed because of an insufficient volume of patients, as the abortion rate has steadily declined. But there is no question that many of these clinics—and certainly most of the closed twenty in Texas that the Court took pains to note—folded because of their inability to come up with the money for the huge costs of making the upgrades demanded by the ASC regulation, a figure that could reach over a million dollars. The hospital admitting privileges requirement has arguably been even more challenging, as this was a problem fundraising could not solve. Whether because of their own anti-abortion sentiments, or, more likely, fear of protestors, Texas hospitals have been extremely reluctant to grant admitting privileges. But even granting ideological neutrality of hospitals, the admitting privileges requirement is complicated, ironically, by the fact that abortion is so safe: therefore, it is impossible for providers to accumulate the ten patient admissions per year that many hospitals require for a physician to maintain privileges.
This decision will have enormous consequences for abortion access in Texas and beyond—but not immediately. In Texas, we will witness the considerable challenges of reopening clinics once they have been closed. As the law professor David Cohen has aptly pointed out with regard to the twenty closed clinics, reopening is complicated “because of practicalities of hiring, leases, the availability of doctors, etc. You can close a clinic in an instant; reopening one, especially one that has been closed for a year or more, is not so easy.” Elsewhere, in those numerous states that similarly have imposed ASC and admitting privileges requirements, we can anticipate that these restrictions will ultimately be struck down as well. Indeed, just one day after the Court announced its decision, there have been positive developments in Alabama, Mississippi, and Wisconsin. In other states, pro-choice lawyers will need to litigate in order to have similar restrictions overturned.
Finally, the positive decision in Whole Woman’s Health is not just a victory for providers and supporters of abortion. It is a resounding pushback against the “junk science” we have seen coming from conservatives, particularly since the George W. Bush presidency, and an affirmation of the importance of scientific evidence. The many lies about abortion that right-wingers in and out of office have promoted—e.g. abortion causes cancer, infertility, and mental illness—are not unconnected to the lies about climate change, homosexuality, effectiveness of condoms, and so on, that have become so common place in our political discourse.
Given that Justice Anthony Kennedy himself legitimized the discredited notion of “post abortion syndrome” and “abortion regret” in Gonzales v Carhart, the last major abortion case in 2007, it was particularly heartening to see Kennedy join in the Majority in Whole Woman’s Health.
The positive outcome of this case does not mean, of course, that the abortion war is over—it never is. Officials in Texas and elsewhere will no doubt devise other ways to make abortion care as cumbersome as possible, and thanks to the tireless lawyers at the Center for Reproductive Rights and the ACLU Reproductive Freedom Project, these too will be challenged. But for now, abortion providers and their supporters are savoring a long overdue burst of sanity.
About the Author
Carole Joffe is a professor in the Advancing New Standards in Reproductive Health (ANSIRH) Department of Obstetrics, Gynecology & Reproductive Sciences at the University of California-San Francisco and a professor emerita of sociology at the University of California-Davis. She is the author of several other books, including Doctors of Conscience and Dispatches from the Abortion Wars. Follow her on Twitter at @carolejoffe.