Back in 2013, the Texas legislature passed House Bill 2 (HB2) concerning abortion and access to abortion across the state. Two of these laws—one that requires any physician who performs abortion to have admitting privileges at a hospital within 30 miles and another that state’s abortion clinics must adhere to the standards set for ambulatory surgical centers (ASC)—have had the effect of closing 22 of the 41 state’s abortion clinics, essentially eliminating abortion options for women all over the state.
The court case everyone’s eyes are upon, Whole Woman’s Health v. Hellerstedt, started back in 2013 when Whole Woman’s Health—a privately-owned organization that provides holistic care for women—challenged the state’s new laws. The case has made its way through a number of lower courts before reaching the Supreme Court. The district court sided with Whole Women’s Health, stating that the new laws in place created an “undue burden” on women. This phrasing can hold significant weight at the Supreme Court, where Planned Parenthood v. Casey, a case from 1992, set new precedents for regulatory laws, stating they would be opposed in court if they provided an “undue burden” for abortion-seeking women.
Admitting privileges at a hospital require that one of the physicians at the local abortion clinic have a membership at a local hospital, something that can be difficult to maintain—as there are generally admittance requirements to keep your privileges. Additionally, a person who needs emergency ambulatory attention can be transferred to a local hospital whether or not the physician has admitting privileges.
An ASC is a non-hospital setting that provides low-risk surgery. The standards for these buildings require much larger spaces and facilities than most abortion clinics have. Many clinics have had to close because they don’t meet these standards and can’t afford the sort of complete renovation they would need to meet them. Opponents of the HB2 laws have clearly stated that these provisions are unnecessary for the health and safety of a standard abortion procedure.
This case is expected to be decided upon next Monday, June 27th, as the Supreme Court’s current term is coming to close. If these laws are to be upheld in court, 10 additional clinics would close and abortion would only be available in the state's’ four major cities.
The court’s main question will be whether the “substantial burden" analysis (whether the laws create an “undue burden” for women accessing abortion) should evaluate and consider if the laws promote the health of the women.
The case results could have a large impact on not only Texas but other states with similar laws —either making it possible to challenge other restricting law or further limiting access to abortion in the U.S.
Here are just five reasons why this case matters for Texas and the rest of the country:
1) The abortion clinics in Texas that have remained open are all in major cities, meaning the women in rural areas and around the border are being affected the most. This results in women traveling far over the national average of 30 miles to reach clinics, sometimes up to 300 miles away.
2) The wait times at the 19 open clinics are three weeks on average and have unhealthy side effects on women seeking reproductive health care.
3) Women who travel extremely long distances are forced to spend money on transportation and lodging, all while trying to take off work and possibly care for children.
4) The FDA requires that women who chose abortion-inducing medication return to the doctor at least four times, furthering the travel-related complications for rural women.
5) Women who need an abortion, but can’t tell their partners or parents, have higher chances of getting caught and are put at risk.
The recent death of Justice Scalia puts the court down to eight Justices, which could make the decision a tie at 4 v. 4, leaving the Fifth Circuit Court's opinion in place. The only hope the liberal side has is Justice Kennedy, who could potentially swing; he was on the court when the “undue burden” clause was established. If there is a tie, the 5th Circuit Court decision would hold and the HB2 laws would be in effect, meaning bye bye abortion accessibility for Texas.
Top image courtesy of Flickr artist openDemocracy
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