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The Supreme Court struck down two key provisions of Texas' HB2 yesterday in Whole Woman’s Health v. Hellerstedt, addressing major barriers to abortion access in the Lone Star State, and all I can think about is the perilous nature of the high court, and of abortion rights at large.
Don't get me wrong: I am thrilled about the 5-3 decision, in which the court determined that ambulatory surgery center and admitting privileges requirements constituted an undue burden for abortion access. That makes both of them unconstitutional, and it's a delight to see the court taking such a strong stance on these requirements, especially since they've been creeping across conservative regions of the country like kudzu. But in these troubled times, I feel like I can't really celebrate anything for long without immediately reflecting on the fight that lies ahead.
Supreme Court problems
Let's start with the Supreme Court, which, as we know, is still down a justice over three months after President Obama nominated Merrick Garland to fill Justice Scalia's vacant seat. That's an unconscionably long wait, and it's destroying American jurisprudence, as we can see when we take a look at other recent Supreme Court decisions, such as last week's major immigration ruling, or lack thereof.
Any reasonable person would agree that we need to hold confirmation hearings for Mr. Garland, and we need to do it in a timely fashion — it would have been nice to see some sitting in and filibustering for proceeding with hearings, is all I am saying. It's not just that this is the law of the land and how things work, but that leaving only eight people on the bench presents huge problems, and, uh, if something really terrible happens in November, Donald Trump will be picking the next justice, which I think we can all agree is a terrible idea.
"All agree" as in a lot of Republicans appear horrified by Mr. Trump too, so you'd think they would get behind holding confirmation hearings already. The fact that they're willing to cut off their noses to spite their faces is a telling testimony to the state of the GOP. They are so determined to make a political point that they are willing to jeopardize the future of this country, taking a gamble on a justice who could spend decades on the court.
We need a new justice. Now. Because while this case may have been a critical moment for the court, and a landmark decision, it's not the last time abortion will come up. Abortion is also just one among many, many issues that the court will be considering. Dereliction of duty in the form of refusing to address a vacancy isn't a good look.
TRAPped in a hard place
This ruling addressed two very specific anti-choice tactics, both of which are forms of targeted regulation of abortion providers, also known as TRAP laws (seriously). Such legislation has absolutely nothing to do with passing reasonable guidance designed to improve the safety of medical care, and everything to do with attempting to choke abortion providers out of business, which the Notorious Ruth Bader Ginsberg made crystal clear in her comments on the case. In this case, the Supreme Court clearly saw the transparency of these tactics and made a ruling that would uphold the right of abortion providers to do their job.
The first is classifying abortion clinics as ambulatory surgical centers, regardless as to whether they offer surgical abortions. This classification forces clinics to uphold extremely high standards that are totally ridiculous, given the nature of the procedures offered — even if a facility only does medication abortion, it would practically have to build a mini-hospital to meet requirements. They also make it much more expensive to construct and run a clinic, and this drove a lot of clinics out of business in Texas, just as it did in other states with similar laws.
The second is admitting privileges legislation, which requires abortion providers to have admitting privileges at a hospital within a set distance of a clinic. Given that hospitals consider admitting privileges to be, er, privileges, not rights granted by virtue of having an MD or DO after your name, this also effectively shuts down abortion providers, because they can't necessarily get a local hospital to extend admitting privileges.
TRAP has the effect of forcing abortion clinics out of many regions, particularly rural and/or poor communities that cannot afford to sustain them. Sometimes they can't afford to meet ambulatory surgical center requirements. Sometimes providers can't get admitting privileges, or there's not even a hospital close enough to meet the standards.
Antis love TRAP because it allows them to sneakily attempt to outlaw abortion without actually outlawing it, knowing full well that the Supreme Court has already affirmed the right to abortion access. Now that this ruling has come down, states that have copied this legislation — sometimes literally, because groups like Americans United for Life helpfully draft cut and paste legislation packages — are in trouble.
However, they're only a little bit in trouble, because these two examples of TRAP are just a small part of a much larger picture. In Texas alone, there's still a 20 week abortion ban on the books. You want to hear something gross about the consequences of that ban? A Texas woman who was miscarrying was sent home and told that her fetus would need to die inside her before she could come back to the hospital for care, because the staff could be charged if they induced labor and delivered the doomed fetus, since it would be considered an abortion.
Imagine having a wanted and eagerly anticipated pregnancy after your last pregnancy ended in miscarriage, going to the hospital when it became evident that something was wrong, and being told by horrified hospital staff that they couldn't do their jobs. This is inhumane and awful, but it's also dangerous: in cases like this, the safest thing for the pregnant person's life and future fertility is to end the pregnancy. Forcing someone to wait until verification of fetal death opens up the opportunity of infection and serious complications, like what happened to Savita Halappanavar.
Here's a selection of other laws that either have been passed in some states or are under consideration: Bans on abortion for sex or disability; 20 week abortion bans; "fetal hospice" bills; requirements that fetuses receive pain management during abortions; mandatory ultrasound bills; limitations on who can perform abortions; requiring clinics to have transfer agreements with local hospitals; "partial birth" regulations; restrictions on use of public funding; waiting periods; parental consent; mandatory counseling; and "conscientious objection" laws that allow medical providers to refuse to participate in given procedures on personal grounds.
Since obviously forcing patients to sit in a waiting room while actively miscarrying because you refuse to sully your hands with involvement in a D&C is a totally legit example of ethical, compassionate medical care.
Meanwhile, Texas' abortion clinics aren't going to magically pop back up. It takes months and sometimes years to apply for all the correct permits and licenses, build a clinic, and get it running. Public health officials in Texas have a vested interest in restricting access to abortion care, and they aren't going to make it easy for clinics to start back up again. The some holds true in other states dealing with laws like HB2.
This Supreme Court victory shouldn't be taken as a sign that everyone's cool and groovy, "the next Roe v Wade has been settled," and free abortions are available on every street corner. Instead, it should be viewed as what it is: A scant few inches of ground gained in a horrific battle for bodily autonomy and patients' lives. Antis are already thinking up their next angle of attack, and we should be doing the same.