Since 2013, Texans on both sides of the aisle have watched a legal battle rage over the implementation of House Bill 2. The omnibus abortion restriction bill eventually passed after each provision failed as an individual bill during the 83rd regular legislative session, and despite Senator Wendy Davis’ epic filibuster in a special session that summer. On Friday, opponents of the measure got the news they had been waiting two years to hear. The Supreme Court would consider the case against the two most egregious components of the law: the requirement that all abortion facilities meet the standards of an ambulatory surgical center, and the provision requiring all physicians performing abortions to have admitting privileges at hospitals no more than 30 miles from the facility.
For a multitude of reasons, these two provisions have been elevated as the most damaging pieces of what amounts to a catastrophic law in terms of access to abortion in a state that is larger and more populous than many countries. Converting an existing facility into an ASC costs millions of dollars, a price tag that is simply too high for many clinics across the state. Admitting privileges can be hard to come by, especially as hospitals consider the potential backlash. What’s more, the provision assumes that there is a hospital within 30 miles in the first place – which is not a reality for many of the more rural communities in Texas.
As opponents of the law have argued since the beginning, this is just another TRAP (targeted regulation of abortion providers) law, focused not on increasing women’s health – as the authors of the bill and then the state of Texas have claimed – but on decreasing access to abortion services by forcing clinics to close and prohibiting physicians from practicing. And this question also lies at the heart of the decision the Supreme Court will make when it takes up the case, which is expected to happen this spring.
It has been nine years since the Supreme Court has considered a case regarding abortion access. The last three times the Court considered the issue, Mother Jones reminds us, they ruled in favor of the restrictions. Granted, this is a different day, and a different Court. But the decision will rely on the results of a game-changing case from 1992.
That year, the Supreme Court took up Planned Parenthood v. Casey. At the heart of the case, which came out of Pennsylvania, was whether laws that placed restrictions on access, like requiring minors to get permission from their parents, were unconstitutional. In a pivotal decision that would lay the groundwork for an avalanche of restrictive legislation, the majority of which has passed since the Tea Party Wave in 2010, the Supreme Court determined that states may place restrictions on abortion access as long as it does not result in an “undue burden.” Since then, SCOTUS Blog reports, there has been little to no further discussion about what “undue burden” means.
There is more at stake here than just abortion access in Texas, and that is no small question. Since the law’s passing, Texas has gone from 41 abortion facilities in the state to 18. Should the Supreme Court rule in favor of the restrictions, that number could drop to seven. But Texas isn’t the only state where these kinds of restrictions have succeeded in recent years.
According to a January 2015 report from the Guttmacher Institute, 231 abortion restrictive laws had been passed at the state level since the elections in 2010. The laws, like many Tea Party – fueled policies that have popped up in the last five years at the state level, are eerily similar. Take, for example, the other case the Supreme Court could have picked up regarding abortion access: Jackson Women’s Health Organization v. Currier out of Mississippi. As reported by Mother Jones, this case centers on a similar admitting privileges law that passed in that state, and stands poised to shut down the last operating clinic in Mississippi.
This case will determine the future of abortion access across the country. Should the justices find that these restrictions constitute an “undue burden,” the decision may impact some of the hundreds of other TRAP laws that have passed in other states. If the ruling goes the other way, it will clear a path for state legislatures everywhere to decimate access to abortion with no fear of legal repercussions.
And for this Texan, who stood with Wendy, testified at the capitol, and who has watched the painful process of the bill to this point, it holds great significance, too. Every small victory is followed by what feels like crushing defeat. First, the filibuster was followed by another special session through which the bill sailed without fear of procedural obstructions. Then, despite some encouragement from the courts, came the closure of over half of the operating abortion facilities in the state. The back and forth between implementation and injunction has been so confusing that it has caused many to wonder whether abortion is even legal anymore in this state. Just ask the employees at abortion providers – one of the most often-asked questions following HB 2 is whether you can even get an abortion anymore in Texas.
Many pro-choice leaders have come out since the Supreme Court’s announcement and expressed optimism and belief that the judicial system is on our side. I, too, share this hope – though it is sometimes hard to come by.
The Supreme Court is expected to review the case in early spring, and issue a decision in June of 2016.