On Monday we had some rare good news coming out of the Supreme Court in a case that would not have been affected by whether Justice Antonin Scalia had remained alive or not. It’s the case of Whole Woman’s Health v. Hellerstedt.
This was the case that challenged the abortion law that threatened to put more than half of the clinics left in Texas out of business. But before we get there, let’s review a little about how we got here:
- The 1973 case of Roe v. Wade, 410 U.S 113, was the landmark case that legalized abortion in all fifty of the United States. This is the case that established the “trimester framework,” and also established that abortion was a “fundamental right” under the Constitution. On the other hand, it also acknowledged the state’s interest in the fetus as it grows, and essentially outlawed abortion in the third trimester of pregnancy.
- The next really significant case is 1992’s Planned Parenthood v. Casey, 505 U.S. 883, in which the court abandoned the trimester scheme for a “viability” scheme, and began what has been an almost 25 year process of chipping away at abortion rights. The court never backed off of it’s original decision that the right was “fundamental,” but replaced it’s “strict scrutiny” standard with an “undue burden” standard. Under that standard states have adopted and courts have upheld restrictions including but not limited to:
- Requiring waiting periods before a woman may have an abortion;
- Requiring state mandated counseling;
- Requiring state-mandated ultrasound procedure;
- Requiring abortion clinics to meet the standards of ambulatory surgical centers;
- Requiring women to listen to the fetal heartbeat before an abortion may be performed;
- Requiring doctors to read a prepared script;
- Requiring spousal and parental notification;
- Prohibiting “partial birth” abortions;
- Allowing insurers to refuse to cover abortion; and
- Prohibiting the use of public funds for abortions.
- In 2013, Texas passed House Bill 2 which, among other things, required doctors performing abortions to have admitting privileges at a hospital within 30 miles of a clinic, as well as requiring abortion providers to meet the requirements of ambulatory surgical centers. It is against this bill that Wendy Davis staged her epic filibuster, which eventually was broken when Texas Governor Rick Perry called the legislature back into session. This is the bill which is the subject of the Hellerstedt decision.
It’s rather surprising, frankly, that this was not a 4:4 draw, thus leaving in place the decision of the lower court. And that court, the Fifth Circuit Court of Appeals, had previously issued a decision upholding most of the Texas law.
Switch-hitter Anthony Kennedy was the deciding vote here, agreeing with the majority that the restrictions imposed by Texas really do put an undue burden on a woman’s right to an abortion. While Antonin Scalia, if he were alive, would surely have voted with the minority, it turns out that his vote would not have been deciding in this case.
What does seem to have made a big difference is the court’s “exposing” the hypocrisy behind the claim that Texas was somehow doing this for the health benefit of its women. That hypocrisy was exposed in a colloquy between Ruth Bader Ginsburg and Texas Solicitor General Scott Keller, who argued that Texas women were not unduly burdened because they could always get an abortion in New Mexico. But New Mexico, of course, has none of the standards related to hospital admissions and ambulatory surgical centers that Texas claimed it needed to protect its women.
And frankly, anyone with half a brain knew that these restrictions were not about protecting the health of women in Texas, but about making it very, very hard for them to get an abortion. Ruth Bader Ginsberg was just able to expose that lie more effectively than others.