In one of its final big decisions before summer break, the Supreme Court struck down parts of a restrictive abortion law in Texas that has been copied in states across the country. The decision — the biggest abortion-rights case in years and an unquestionable victory for pro-choice advocates — was 5–3.
The Texas law, which is the same one that Wendy Davis memorably filibustered, was passed in 2013 and quickly caused the number of clinics in the state to dwindle from about 40 to fewer than 20. If the Supreme Court had upheld it, the law could have left fewer than 10 clinics operating in the state. Republicans in the state legislature, arguing that they were only thinking of the health and happiness of women, demanded that all clinics offering abortions resemble surgical centers, and that all abortion doctors have admitting privileges at nearby hospitals. These measures, often known collectively as Targeted Regulation of Abortion Providers (a.k.a. TRAP laws), have done nothing but make it harder for women, especially low-income and minority women, to find a place to get an abortion. They were meant to fix a problem that did not exist; as Vox notes, "There are twice as many complications associated with wisdom teeth removal as with abortion."
"Neither of these provisions," Justice Stephen Breyer wrote in the majority opinion, "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." Justice Ruth Bader Ginsburg was even more blunt in her concurring opinion: "It is beyond rational belief," she wrote, "that [Texas' law] could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions.'"
In the years since conservative legislatures began implementing this type of legislation, it became clear that these rules could chip away at abortion rights just as effectively as an outright ban would. Many women, doctors, and nonprofit organizations in these states came forward to tell stories — talking to reporters and filmmakers, tweeting, and gathering en masse — about how the law was making life difficult. Women in rural Texas often had to drive nearly 100 miles to get to the nearest clinic. The state also has a 24-hour waiting period between an ultrasound and the procedure, which means paying for lodging or doubling your drive. The Texas Observer spoke to one woman who went in for a 19-week ultrasound and found out that her fetus had a severe brain defect and would likely be stillborn. The state also has a 20-week abortion ban, so she and her husband had a week to try to find a clinic without a wait so long that they would miss that benchmark before their appointment. They ended up driving all the way to Arkansas, to the only clinic in that whole state.
In Louisiana, where an admitting-privileges law is on hold, women are sometimes terrified about the idea of waiting for scarce openings at the few clinics left. "Ladies were crying, begging us to fit them in," one clinic staffer told the Guardian. "Because if we couldn’t fit them in, they would have to go even farther away. That takes money. And most of them were terminating for financial reasons." Willie Parker, one of the most well-known abortion doctors in the country, wrote in the New York Times last year, "Years ago, I saw a patient in Mississippi whom I still think of often because of her intense grief in the midst of pregnancy. She had had five children, the youngest of whom had died the year before from cancer. She knew that she could not care for another child, financially or emotionally. She had traveled two hours to see me for her first appointment, which is for counseling only. Even though she was resolute, and knew what was best for her family, the procedure could not be done that day because state law requires that it be done in a follow-up visit, after initial counseling."
There is only one abortion clinic left in the entire state of Mississippi.
It's not clear yet how this decision will spiral out and affect the many similar laws across the country. Many of them are already in legal limbo and will probably be overturned because of this new legal precedent. However, state legislatures keep coming up with new, more ridiculous abortion regulations. Who knows how the legal system will respond to them? According to the National Partnership for Women & Families, there have been more than 350 abortion-restriction bills introduced this year, and the group estimates that at least 70 percent of these are based on complete falsehoods. Others just seem intended to make life difficult, like the law in Texas. Alabama passed a law this year that would prohibit abortion clinics from being closer than 2,000 feet to a elementary or middle school. A new law in Indiana bans abortions for situations involving a fetal abnormality. A bill that would criminalize abortion in Oklahoma just got vetoed. A federal court opinion slamming Wisconsin's admitting-privileges law last year noted that "a 90-mile trip is no big deal for persons who own a car or can afford an Amtrak or Greyhound ticket. But more than 50 percent of Wisconsin women seeking abortions have incomes below the federal poverty line. ... The State of Wisconsin is not offering to pick up the tab, or any part of it."
So the fight over abortion is by no means over. Republicans in Texas, for example, aren't ready to stop pretending that this legal fight wasn't another chapter in the ongoing battle around women's health; Lieutenant Governor Dan Patrick said the decision was "a devastating blow to the protection of the health and safety of women in Texas."
But, at least for now, it won't get even harder to get an abortion in Texas, where there are more than 5 million women of reproductive age. And clinics in the state are pretty excited. Amy Hagstrom Miller, president of Whole Woman's Health — the plaintiff in the case — spoke outside the Supreme Court on Monday, as a throng of supporters and anti-abortion activists milled about with signs. "I want everybody," she said, "to understand you don’t mess with Texas women."
This post has been updated to reflect that Whole Woman's Health was the plaintiff, not the defendant, in Whole Woman's Health v. Hellerstedt.