What Whole Woman’s Health v. Hellerstedt means for reproductive rights
Oftentimes Americans view abortion as a taboo topic. People seem willing to acknowledge that it can happen, but they might not feel comfortable thinking about it actually happening. Yet according to the Guttmacher Institute, a think tank that advances sexual and reproductive health globally, every three in 10 women will have an abortion by age 45. Even if you don’t think you know someone who has had an abortion, chances are you’re wrong.
Image by Grace Rychwalski
Controversy about abortion mostly derives from other people’s opinions regarding the legality and morality of abortion. According to a 2015 Gallup poll, only 19 percent of U.S. participants believe that abortion should be completely illegal. This means that a far larger majority of those in the United States believe that abortion should be legal or at least legal in some instances. With these poll results in mind, Americans should pay attention to the outcome of one case currently on the United States Supreme Court docket.
On March 2, 2016, the Supreme Court heard oral arguments for Whole Woman’s Health v. Hellerstedt. This challenges House Bill 2, which imposes standard on the ability that states have with enacting legislation that sets standards for abortion clinics and abortion seekers in Texas. Texas Governor Greg Abbott signed the bill July 7, 2013.
John Hellerstedt, current commissioner of the Texas Department of State Health Services, and Mari Robinson, executive director of the Texas Medical Board are defending the lawsuit. They believe the Texas legislation works to protect women’s health.
Whole Woman’s Health, a private gynecology and abortion care clinic for women in Texas, argues that these laws don’t protect women’s health; but rather they inhibit women from receiving protection.
Texas has enacted HB2, to place specific health and safety requirements for abortion clinics in order to function. These requirements involve making clinics have the same standards as surgical centers, regulating on staffing, requiring doctors to have admitting privileges at hospitals that are in a 30-mile radius — even if the doctor never plans to work at that hospital — and more hard to follow regulations.
These regulations are not what abortion clinics need. According to a US News article published on Jan. 11, 2016, Whole Woman’s Health brought their grievances with Texas to the courts because this law “isn’t medically necessary, is demanding and expensive, and interferes with women’s health care.”
Instead of “helping,” the case could lead to the clinic closing down. Since less women can seek abortions, more women are in danger.
For those who believe that having an abortion has negative health consequences for women, they’re wrong. In fact, there is more risk in carrying through with a pregnancy than having an abortion. Research published in a 2012 study in the Obstetrics and Gynecology medical journal stated, “The risk of death associated with childbirth is approximately 14 times higher than that with abortion.” On Feb. 21, comedian John Oliver ran a special on HBO’s Last Week Tonight about the closure of abortion clinics in the United States. When it comes to women’s health, Oliver sums up the information regarding safety when he says “legal abortions have a mortality rate of 0.00073%. That is nearly 10 times less than what one study found was the risk of dying as the result of a colonoscopy.”
Texas and other states have also enabled Targeted Regulation of Abortion Providers (TRAP) laws that are presented as though their goal is to “protect” women’s health. Newsflash: they don’t. Instead, these TRAP laws have led to rapid closure rates of abortion clinics around the country.
In the past six years, states have passed more than 280 different TRAP laws that have led to the closure of nearly 70 abortion clinics across the country. With Whole Woman’s Health v. Hellerstedt, the Supreme Court has the ability to determine if states have the constitutional right to enforce these type of regulations. This is the first abortion case the court has heard in over 20 years. The previous two cases relating to abortion were Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
In the landmark 1973 case Roe v. Wade, Jane Roe sought to terminate her pregnancy, but Texas law strictly prohibited abortions except in instances where the woman’s life was in danger. In a 7—2 decision, the court ruled in favor of Roe. OYEZ, a resource with information Supreme Court case law ran by the Illinois Institute of Technology, explained the reasoning behind the seven justices’ decisions: “The Court held that a woman’s right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over her pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters.”
Unfortunately, in 1992, the second major abortion case, Planned Parenthood of Southeastern Pennsylvania v. Casey, worked to create HB2 and other TRAP laws. In the late 1980s, the Pennsylvania legislature added new provisions to abortion procedures. The provisions required a 24 hour waiting period prior to all procedures minors to have the consent of one parent and married women to have the consent of their husband. In a 5—4 decision, the court ruled in favor of Planned Parenthood, but according to OYEZ, “the Justices imposed a new standard to determine the validity of laws restricting abortions.”
The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The lack of a specific standard for undue burden is what enabled conservative states to form TRAP laws and other regulations.
These regulations can come in two different forms, regulations that can be imposed upon the clinic or regulations imposed upon the person seeking the procedure. Aside from the fact that limiting a woman’s right to choose is ridiculous, and some of requirements are even more outlandish. In 2013, Texas Governor Rick Perry signed legislation that required abortion clinics to have the standards as ambulatory surgical centers. In a March 2016 article from the Lawyer Herald, a news organization that provides news relating to legislation and law enforcement, found that abortion rights supporters claim that these regulations are “intended to cause the closure of clinics by forcing them to construct costly and unnecessary facilities that ultimately serves no public health purpose.”
Some of the so-called unnecessary standards listed by the Lawyer Herald include “spacing of beds, the number of parking spaces, minimum corridor width, building ventilation, electrical wiring, elevator size, floor tiling, the size of patient recovery rooms, the availability of foam or liquid soap dispensers, and hand-washing fixtures in bathrooms.” These requirements do not work to protect the safety of women. Instead, they add additional financial costs to the clinic, which could ultimately lead to closure. In a March 2016 report titled “Targeted Regulation of Abortion Providers” published by the Guttmacher Institute, “24 states have laws or policies that regulate abortion providers and go beyond what is necessary to ensure patients’ safety; all apply to clinics that perform surgical abortion.” Oliver’s HBO segment even includes an interview with Dalton Johnson, the owner of Alabama Women’s Center. Johnson said he’s spent close to a million dollars to meet these state requirements.
For the individual, some laws aim to discourage or shame a woman for wanting to have an abortion and instead aim to have her carry through with her pregnancy. Near the start of March, Indiana Governor Mike Pence signed House Bill 1337, that reinforces this type of shaming. The bill states that “a pregnant woman considering an abortion must be given the opportunity to view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone at least 18 hours before the abortion is performed and at the same time that informed consent is obtained.” The Indiana law includes additional regulations, and Mar. 25 Huffington Post article summarize the bill with the headline “New Indiana Law Makes Getting an Abortion Nearly Impossible.”
Andrea Ferrigno, the corporate vice president for Whole Woman’s Health, spoke on her company’s blog about the unfairness and uselessness of HB2 and TRAP Regulations have on the clinics. In a Mar. 8 post Ferrigno said, “I have also seen firsthand how laws like HB2 can force clinics to shut down. I’ve had to sign the construction orders for costly work to comply with medically unnecessary TRAP regulations.”
She also discussed how these regulations impact patients: “Not only have they tried to shut down our clinics, they’ve tried to stop us from creating the warm and friendly atmosphere our patients deserve. They want to make our spaces cold, sterile, and scary. I watched with sadness as they told us we could no longer provide the soothing space our patients are grateful for. Again, there is no medical reason for these rules.”
Although most of the elder, conservative males in the Supreme Court may not care about what happens to women’s bodies, for the sake and sanctity of those thirty percent of women women, the outcome of this case is extremely important.
With only eight Justices on the court as of March 2016, if the Supreme Court rules against Whole Woman’s Health or splits on a 4—4 vote, abortion clinics will continue to close in Texas. The Center for Reproductive Rights reported in an Oct. 2015 study titled “Research Reveals Devastating Impact of Clinic Shut Down Laws on Texas Women,” that if Whole Woman’s Health does not win, the state would have as little as just nine abortion clinics. Currently, the state has 19 abortion clinics in operation. This is substantially fewer clinics than the 42 that were open before the 2013 HB2 law was first enacted. In a state that’s the second-most populous in the nation, having just nine places where women could seek an abortion would be incredibly impossible and hard to do — a clear undue burden for Texas women.
Ferrigno has spoken about how incredibly hard it has become for Texas women to seek an abortion after the numbers shifted from 42 to 19.
“I think about the woman that on the phone begged me to see her even though our clinic was shut down by this law, I still hear her desperation telling me: “Please, please, I won’t tell anyone. Why won’t you help me, please?!’”
HB2 and TRAP laws impose obstacles on women who feel they are not prepared for pregnancy from seeking abortions. These regulations also impact women who want an abortion because of health and safety concerns. Ferrigno wrote about this issue as well.
“Or the woman that became pregnant while starting her [chemotherapy] treatment for ovarian cancer,” she wrote in her Mar. 8 blog post. “Her own physician refused to help her terminate the pregnancy because of fear of repercussion from the anti-choice board members of his hospital. She came to us the day HB2 was enacted and we couldn’t see her.”
Imagine how much tougher it would be for women if they could only find nine places, in their large state, to get an abortion. Often times, this would affect minority groups of women. When discussing the case, Amy Hagstrom Miller, president, founder and CEO of Whole Woman’s Health, said: “This is the real world and these laws have real implications on real women’s lives. Unfortunately, it is our low-income women, women of color and rural women that bear the brunt of these harsh laws.”
The importance of this case lies behind the fact that it could set precedents and increase or shrink the role states have in giving women the ability to terminate their pregnancy.
The Supreme Court has the ability to decide what can happen next with women’s bodies. This is important, and hopefully a majority of the Supreme Court will side with Whole Woman’s Health. Unfortunately, abortion is a topic that is highly controversial, and something that might be harder to win over the hearts and minds of the older male justices. Drawbacks of gerontocracy, a form of oligarchy where the entitled leaders are those that are members of an older population, might be noticed with current justices. This isn’t to hate on old people — Ruth Bader Ginsburg is one of the most badass females out there — but when the Supreme Court of the United States consist of a majority of older men, problem might arise when it comes to deciding monumental cases concerning women’s rights.
If the court rules against Whole Woman’s Health, as predicted, there could be a domino effect of closures for additional abortion care providers. Favoring the HB2 laws in Texas, would mean that abortion, technically, would not be illegal. But it would be damn hard for a woman to receive one.
Miller discussed the hardships these women could face: “For thousands of Texans, access to safe abortion care is a right on paper but no longer actually accessible. Texans are now forced to undertake multiple, unnecessary visits to clinics that are now farther away; they take more days off of work, lose income, have to find childcare, and arrange and pay for transportation for hundreds of miles.”
Miller’s statement reflects the hardships women could face as they attempt to visit a new clinic. Oftentimes for poor women, women of color and rural women, it is nearly impossible to travel through the hoops and hurdles that HB2 and other TRAP laws impose. As Oliver said in his segment, “abortion cannot just be theoretically legal, it has to be literally accessible.”
Elena Piech is a freshman journalism major who wishes the Supreme Court was just nine Ruth Bader Ginsburgs. You can email her at [email protected].