SCOTUS Finally Sides With Your Uterus

by Amy Lappos

I wasn’t born when the Supreme Court handed down their ruling on Roe v. Wade; I wish I was, I would have loved to have been there on the court steps cheering as they read “Prior to the end of the first trimester, of pregnancy, the state may not interfere with or regulate an attending physician’s decision, reached in consultation with his patient, that the patient’s pregnancy should be terminated…”

I single that part out because this week, WOMEN won reaffirmation of this right from SCOTUS, and we are finally seeing action against the GOP limiting and infringing on our reproductive rights at the state level.

For thirty or more years of our lives, we women try not to get pregnant. Access to affordable birth control and reproductive healthcare are a necessity for women. There are roughly 43 million women in the US who are at risk of getting pregnant, and 90% of those women use a method of birth control, according to the CDC. Over the last three decades, the GOP has been eroding the progress our foremothers made in securing our right to affordable and accessible reproductive healthcare.

Since Roe v. Wade, anti-choice politicians and lobbyists have worked hard to limit women’s access to services through two legislative methods: reducing public funding and imposing “safety” measures. How? How were states able to reduce women’s abortion rights?

There have been several cases in the last three decades, under a rather conservative bench, that have altered our rights as defined by Roe v. Wade.

1748216477 e813e4fc59 copyvia Flickr/Open Democracy

In 1980, Harris v. McRae reaffirmed the 1976 Hyde Amendment, which prevents the use of federal funds for reimbursement of abortion services for Medicaid recipients. Medicaid is income-based: Women who cannot afford healthcare most likely cannot afford an abortion, so abortion became a privilege. Women are forced to bear children they knew they cannot not afford to raise. The Hyde Amendment is still in place today.

1989’s Webster v. Reproductive Health Services sustained the lower court’s ruling that a public hospital does not need to perform an abortion unless it is to save the life of the mother. Although women have the right to have an abortion, public facilities do not need to faciliate that right. This allowed states to set more limitations to access.

In 1992, Planned Parenthood v. Casey challenged several abortion limitation laws in Pennsylvania. Some were rejected, while others were upheld. While the ruling reaffirmed that a law is unconstitutional if it imposes an undue burden on a woman, the power of the state to legislate abortion was strengthened. A state was given the right to have “legitimate interest” in the safety and welfare of the woman and fetus, including fetal viability. Hence the “safety” laws state GOP governments pass despite the risk of death by childbirth is 14 times higher than death by abortion. Less than .03% of abortions require emergency hospitalization. But this ruling was not about safety, it was about limiting access.

In his Planned Parenthood v. Casey opinion, Justice Scalia (appointed by Ronald Reagan) said, “That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.”

Over the next two decades, states continued passing laws that either reduced funding or accessibility for the “safety” of the mother and/or fetus. In the 2010s, lawmakers and lobbyists  began targeting providers through TRAP (Targeted Regulation of Abortion Providers) laws, beginning in Michigan, Missouri, Pennsylvania, Virginia and Texas. As TRAP laws gained steam in other states, women paid the price.

In Texas in 2011, family planning funds were cut by 66%, closing 82 women’s clinics (one third of which were Planned Parenthood). Any women’s clinic associated with an abortion provider, whether that clinic provided abortions or not, was defunded. The remaining clinics were so overloaded the wait time for new patients was at least several months, and most clinics were several hours away from clients. Because of these funding restraints, abortion service providers were reduced by 57%.

In 2013, Governor Perry signed Texas HB 2, requiring that all abortions be performed in a surgical center by a doctor with admitting rights to a hospital within 30 miles. All clinics were expected to upgrade to surgical clinic coding, even though abortion does not involve surgery. The results would leave only seven abortion clinics open. These seven clinics would be serving up to 10,000 patients a year, which is obviously unrealistic. It also further reduced access: the number of women living more than 200 miles from a clinic increased by 2,800%. Women are literally denied access to affordable reproductive care by HB 2. Whole Women’s Health Center challenged this law all the way to the SCOTUS.

John Oliver


Whole Woman’s Health Et Al. V. Hellerstedt, Commissioner, Texas Department of State Health Services

Oral arguments over Texas HB 2’s requirements were held before SCOTUS on March 2, 2016; an injunction was issued, suspending the law until a final ruling. The opinion was handed down on June 27, 2016. SCOTUS, without Scalia, sided with the Whole Women’s Health center.

From the opinion of the Court: “We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as interpreted in Casey. The first provision, which we shall call the ‘admitting-privileges requirement,’ says that ‘[a] physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.’ Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015).

“This provision amended Texas law that had previously required an abortion facility to maintain a written protocol ‘for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.’ 38 Tex. Reg. 6546 (2013). The second provision, which we shall call the ‘surgical center requirement,’ says that ‘the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.’ Tex. Health & Safety Code Ann. §245.010(a).

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, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1.”

RBGGif by Shaun Pendergast

What’s Next?

For the first time since Roe v. Wade, SCOTUS restricted a state’s interference with women’s abortion rights and also realized that these laws not only restricted abortion access, but also the other reproductive services women need as part of our everyday health. SCOTUS recognized women. This ruling will make a huge dent in the GOP’s progress to end those rights. We will now be able to keep open and reopen women’s clinics that were closed or at risk of being closed; clinics that provide all women’s services, not just abortions.

Major change is coming: There are 22 states that have surgical standard requirements; 11 states with room size requirements; 10 states with corridor width requirements; 13 states with hospital affiliation requirements; and 10 states with maximum hospital distances. All of these laws were determined to be unconstitutional and must be retracted. If states don’t do it willingly, the Attorney General will force that change. Think about that in the voting booth in November.

So that was the good news, now for the bad: We are not even close to being done. In one year, 570 anti-abortion laws were introduced and 90 signed into law restricting our reproductive rights. Think it isn’t happening in your state? Think it isn’t wide spread? Think again. There are laws in almost every state restricting reproductive rights.

• Health insurance should cover abortion as part of our reproductive health. Does yours?

11 states restrict coverage of abortion in private insurance plans, most often limiting coverage only to when the woman’s life would be endangered if the pregnancy were carried to term. Most states allow the purchase of additional abortion coverage at an additional cost.

• Women should not be forced into counseling, nor be provided FALSE information. Is your state doing this?

17 states mandate that women be given pre-abortion counseling that includes information on at least one of the following: the purported link between abortion and breast cancer (5 states), the ability of a fetus to feel pain (12 states), or long-term mental health consequences for the woman (7 states).

• Why do we need a waiting period after deciding to terminate? Missed days of work or extended travel are most definitely an undue burden.

27 states require a woman seeking an abortion to wait a specified period of time, usually 24 hours, between when she receives counseling and the procedure is performed. 14 of these states have laws that effectively require the woman make two separate trips to the clinic to obtain the procedure.

• Abortion should not be a class issue. Some of our insurance won’t cover the cost, and thanks to the Hyde Amendment, neither will Medicaid. We NEED to overturn the Hyde Amendment and allow any woman access to reproductive rights. We need abortion to be recognized as reproductive health care and treated as such by ALL insurance companies.

17 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. 32 states and the District of Columbia prohibit the use of state funds except in those cases when federal funds are available: where the woman’s life is in danger or the pregnancy is the result of rape or incest. In defiance of federal requirements, South Dakota limits funding to cases of life endangerment only.

This week was a huge win for women, but we need to keep fighting. I’m sure that soon, we’ll see cases popping up using the opinions from Whole Women’s Health and Casey as arguments against restrictive state laws. I believe many will be successful. Are you going to volunteer on these campaigns? Protest? Write your legislators? Contact the complaintent and see how you can help?

Women are 53% of the population, and it is time our issues are treated as such. Remember, when you’re in the voting booth in November, that the candidate you help elect will be the one who will be appointing several members to the Supreme Court. Look back at the cases we discussed and think about how important that decision is. SCOTUS opened the door for us to unravel every restrictive GOP law. Let’s do it.

This post originally appeared on

Top photo: The Notorious RBG

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