Protecting women from their rights

March 2, 2016

Elizabeth Schulte reports on a high-stakes court case concerning abortion access.

IF YOU want to know what's at stake in the Whole Woman's Health v. Hellerstedt case, the U.S. Supreme Court's first major abortion case in a decade, ask any woman seeking an abortion in Texas.

Linda Prine of Reproductive Health Access Project in Las Cruces, New Mexico, says many of her patients recently have traveled up to five hours from the Texas Panhandle to obtain an abortion--and some have journeyed twice as long from the Dallas-Fort Worth are because the wait times back home are several weeks long.

That's the impact of Texas draconian anti-abortion House Bill (HB) 2, passed in 2013. "They are almost traumatized by the experience they've had to go through," said Prine. "Most of my patients are crying."

On March 2, the Supreme Court will began hearing a challenge to parts of HB 2, which among other things placed such harsh restrictions on abortion providers that over half of the state's clinics closed down.

In addition to banning abortions performed after 20 weeks of pregnancy, HB 2 requires doctors to obtain admitting privileges at nearby hospitals, and clinics must meet the standards of ambulatory surgical centers, or ASCs, which are basically mini-hospitals. These restrictions are not only unnecessary but prohibitively difficult to comply with, placing overwhelming roadblocks in the way of women's right to choose their own future.

Reproductive rights supporters filled the Texas capitol building in protest of SB5
Reproductive rights supporters filled the Texas capitol building in protest of SB5 (Lauren Gerson)

These kinds of laws--known as TRAP laws, which stands for "targeted regulation of abortion providers"--now exist in 24 states around the country. Claiming that the aim is to protect women's health, supporters of TRAP laws really want to block women's access to health care. And as Texas has already shown, the women who suffer the most because of these regulations are poor, young and from rural areas.

WITH THE death of Justice Antonin Scalia on February 13, abortion rights supporters felt some relief from a potential 5-4 conservative majority and the possibility that the right wing of the Court would use the decision to challenge Roe v. Wade, the 1973 decision that made abortion legal.

If the vote is split 4-4, which seems likely, the Court will not be able to set a federal legal precedent. But the law will stay in place in Texas--and it will continue to be devastating to tens of thousands of women seeking abortions in that state. Before HB 2, Texas had 42 abortion clinics; today, there are 19. If the Supreme Court upholds all the bill's provisions, there will be fewer than 10.

Justice Anthony Kennedy could decide to vote with the justices in favor of upholding the right to abortion, making the vote 5-3 and striking down portions of the Texas law. But there's a fairly slim chance of that considering his past performance. In 2007, Kennedy wrote the majority opinion in a 5-4 ruling upholding a federal ban on so-called "partial birth" abortions, an inaccurate and non-medical term that the right wing uses to describe some late-term abortion procedures.

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child," Kennedy wrote in that patronizing and ignorant opinion. He continued, "Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow."

Stories told by actual women who have had actual abortions of course prove the opposite--and there are a growing number of these stories out there.

Among the friend-of-the-court briefs submitted to the justices in the Whole Woman's Health case were dozens of personal stories from women who had abortions and the positive impact they had upon their lives--the too-seldom-heard voices of the majority of women who have had abortions.

Among them is Candice Russell, who waited in line for 12 hours to testify in the Texas legislature against HB 2 in 2013. Three years later, she has had a second abortion, which she was forced to travel to California to get. Now, she's telling the Supreme Court her story. "If we lose and I knew I had the opportunity to share and I did not, I would not be able to live with myself," Russell told the Houston Chronicle.

As a young Texas woman who was lucky enough to obtain an abortion before HB 2 told the Christian Science Monitor, "It was something I gave a lot of thought to, honestly. It seemed like a clear choice and, since then, I still believe it was the right choice. It is not something I regret."

Kennedy--along with a fellow Republican appointee, former Justice Sandra Day O'Connor--did side with the majority of justices who decided to reaffirm Roe in 1992 in the Planned Parenthood v. Casey case, which ruled that women should not face an undue burden in obtaining an abortion.

In the face of big demonstrations in support of abortion rights, including a massive march in Washington, Kennedy joined O'Connor and David Souter in an opinion equating upholding Roe with maintaining the legitimacy of the Court itself. "A decision to overrule Roe's essential holdings under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the nation's commitment to the rule of law," they wrote.

ABORTION RIGHTS supporters fought a fierce battle three years ago to try and fend off HB 2. The eyes of the world were on Texas as Democratic state Sen. Wendy Davis staged an 11-hour filibuster to block the legislation. But the real heat came from grassroots activists who traveled from all over the state to pack the legislature for a "people's filibuster" to try to defeat the bill. They came very close to succeeding, but the right wing got their anti-abortion law.

And after the activism subsided, Davis later voiced her support the 20-week abortion ban. Today, she is busy campaigning for Hillary Clinton.

Abortion opponents are using TRAP laws in more states, and if the Texas law stays in place, there will be more legal battles from Wisconsin and Alabama.

The anti-choice side claims it supports these restrictions out of concern for women's health. But the American Medical Association and the American College of Obstetricians and Gynecologists deny the requirements are necessary to protect women's health.

"Abortion is already an incredibly safe procedure, and these restrictions will not make it any safer," Dr. Hal Lawrence of the American Congress of Obstetricians and Gynecologists told the Dallas Observer. "We have data and statistics to support this. The mortality rate is less than 1 in 100,000 for a pregnancy termination--much safer than actual childbirth. The risk of a major complication is similarly low."

In fact, TRAP law restrictions translate into fewer--and often more dangerous--health care choices for women.

If you factor in other restrictions, such as parental consent, waiting periods and mandatory counseling, it can be next to impossible to obtain an abortion in states where the right's laws have been enacted. For instance, a woman in Texas must make two clinic appointments because she is required to have a sonogram and attend counseling at least 24 hours before she can get an abortion.

This is no easy feat, especially since the dwindling number of clinics means longer wait times at those that remain. In Dallas, getting an appointment went from five days to about 20 following the closure of the Routh Street Women's Clinic in June 2015.

That's not to mention the distance that many women must travel to get to the closest clinic. A woman in Abilene, for example, must travel about 150 miles to get to the nearest abortion provider in Fort Worth.

The longer that a woman is forced to wait to obtain an abortion, the more invasive and expensive that procedure becomes. With second-trimester abortions costing as much as $3,000, these restrictions could end up making abortion too expensive for some women. Factor in the difficulties of getting time off work and lost wages, and the obstacles to women's right to choose pile high on one another.

"Undue burden" doesn't even begin to describe it.

HALF OF all pregnancies in the United States are unintentional, according to the American Journal of Public Health. Of those unplanned pregnancies, four out of 10 women choose abortion. Abortion is a common and necessary part of women lives, and any laws that impose any restriction on abortion should be seen as an attack on women's right to decide their futures.

The anti-abortion Religious Right has been allowed to dominate the debate and argue that women need to be protected from their own choices.

This is an outrage--one that is beginning to be felt by more people. A recent poll by the National Institute for Reproductive Health found that less than half of voters knew about the huge number of restrictions being passed around the country, but two-thirds of those people said that anti-choice laws were taking us in the wrong direction, and a majority supported policies to undo them.

The Supreme Court justices will reveal their decision on the Texas law in June. They might want to recall the words of Texas activists during the fight again HB 2 in 2013. "People have been pushed to the brink by constant assaults on their lives, and they feel it's time to fight back," said local activist Katie Feyh at the time. "They feel emboldened by the activism around these bills, but I also think there's a sense of having little to lose and everything to win back."

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