Texas legislators are scheming to put that state’s women into quite a predicament: Women would technically still have the right to an abortion, but access for nearly a million of them would be practically nonexistent.
The U.S. Supreme Court today will hear arguments in a case that basically poses this question: Does the right to do something still exist if lawmakers take away the ability to do it?
The court will hear one hour of arguments in Whole Woman’s Health vs. Hellerstedt. It is likely to be the most consequential abortion case before the court in the past 24 years. You can be sure that if the court upholds the lower court’s ruling, North Carolina legislators will pounce at the chance to clamp down on abortion rights more than they already have.
At issue is Texas’s House Bill 2, which passed in 2013 and imposed two new restrictions. It said all abortion clinics must meet the standards of ambulatory surgical centers, and all abortion providers must have admitting privileges at a hospital within 30 miles of the clinic. The two combined, if allowed to stand, would cut the number of abortion clinics in Texas from 40 to 10 or fewer. If that happens, hundreds of thousands of women will live hours away from the nearest clinic.
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While the state claims that the law was designed to protect women’s health, its supporters celebrated that it would force the closing of clinics and curtail women’s access to an abortion. Besides, the American Medical Association and other medical groups have filed briefs with the court saying “neither requirement is supported by accepted medical practice or scientific evidence.”
It doesn’t seem like a difficult case for the Supreme Court if it follows its own precedent. The court ruled in 1992, in Casey vs. Planned Parenthood, that states could impose some restrictions on abortion but not if they posed an “undue burden” – defined as a “substantial obstacle” – on women.
Can anyone convincingly argue it does not create a substantial obstacle to a woman when all the clinics within three hours are shut down by medically unnecessary requirements?
The case might come down to Justice Anthony Kennedy, who was among the justices who laid down the “undue burden” threshold in Casey. With Antonin Scalia’s passing, a 4-4 ruling would let the Texas law stand (though not establish precedent); if Kennedy sides against it, a 5-3 ruling would overturn the Texas law.
Abortion is a difficult and polarizing topic. It is also legal. So stymied state legislators continually look for a way to sneak past Roe v. Wade. This is their latest effort, and it’s a model North Carolina will likely follow if the high court gives Texas the green light. Anyone who wants to keep abortion safe and legal should hope the court gets it right.