The Supreme Court's Whole Woman's Health v. Hellerstedt decision striking down key provisions of a Texas anti-abortion law — an effort to shutter abortion clinics in the name of "safety" and "women's health" — is a victory for reproductive rights with broad implications. One can only hope the first is to dissuade states from adopting (or perhaps even prompt them to voluntarily roll back) similarly targeted regulations of abortion providers, or TRAP laws.
Restricting a woman's right to choose has become something of a crusade in states that don't mind a little dishonesty with their subjugation of half the population. In the case of Texas, HB2 required providers to have admitting privileges at a local hospital and for clinics to meet the medical standards of ambulatory surgical care centers. In two years, the strict rules caused about half the state's abortion clinics to shut down — and many predicted the number would fall from the 41 that existed in 2013 to no more than 10 within the year.
Are such restrictions in the interest of women's health? Advocates claimed they were, but health professionals cried foul. Both the American Medical Association and the American College of Obstetricians and Gynecologists said the Texas law actually jeopardized women's health by restricting access to abortion providers. As Justice Ruth Bader Ginsberg observed in her concurrence, child birth is more dangerous than abortion, yet Texas doesn't require ambulatory surgical care standards for that common procedure. If states want to get serious about improving women's health, they should invest in the Medicaid expansion (at last count, 19 states haven't, which leaves many Americans still without health insurance despite the Affordable Care Act).
It wasn't just doctors who saw the law for what it was — legal precedent and the U.S. Constitution were on the side of the challengers as well. Not only had Roe v. Wade recognized the rights of women to terminate pregnancy, but the 1992 case, Planned Parenthood v. Casey, set the "undue burden" standard that held abortion restrictions are invalid if they place a "substantial obstacle in the path of a woman's fundamental right to choice."
That the Supreme Court upheld Casey on a 5-3 vote shouldn't have surprised anyone given that Justice Anthony Kennedy voted with the Casey majority nearly a quarter-century ago. The outcome also underscores — once again — the futility of the precedent-setting decision by Senate Republicans not to hold hearings or conduct a vote on President Barack Obama's Supreme Court nominee, Judge Merrick Garland, who has never taken a public position on abortion rights.
Sadly, abortion opponents are unlikely to be dissuaded by this historic decision, surely the most affirming of choice since Casey. According to the Guttmacher Institute, states have enacted at least 38 abortion restrictions in this year alone. There seems to be no limit to the inventiveness of certain politically conservative lawmakers in imposing their will and religious beliefs on the wombs of their female constituents.
What's especially ironic about this — aside from how TRAP laws put women's health at risk while claiming to protect it — is that the number of abortions in this country has been in decline for reasons other than anti-choice regulations. Like the declining birth rate and pregnancy rate, the drop in the abortions is primarily due to improved sex education, the availability of contraceptives and the various preventive programs aimed a teens.
States that target unwanted teen pregnancy in this manner, rather than denying abortion rights, have a much better chance at reducing the need for the procedure and of protecting women's health. Yet some of the highest rates of unintended pregnancy continue to be in southern states like Texas, Mississippi and Louisiana, places that are squarely on the front lines of trying to regulate abortion providers out of business.
No doubt the decision will become fodder for the presidential election. Former Secretary of State Hillary Clinton has already hailed it as a victory for women while Donald Trump has previously promised to nominate anti-abortion Supreme Court justices. But since Democrats are generally in favor of women's reproductive rights and Republican candidates are more often opposed to them, it's hard to see the decision as a difference-maker in the campaign. Americans are divided on abortion and will likely continue to be so.
Rather, the decision is simply an affirmation of science over pseudoscience and a rejection of theocratic rule. Kudos to a downsized Supreme Court for standing up for 14th Amendment equal protection rights.