Choice News

Friday Femorandum: All Eyes on SCOTUS

It was a nail-biting week for reproductive freedom fighters, starting with a Supreme Court case that could determine the future of Roe v. Wade and ending with a dumpster fire of a debate between a bunch of Republican more concerned with whose is bigger than the reproductive autonomy of half the American population.

fire garbage dumpster dumpster fire garbage fireSince nothing of substance was said at the debate, we’ll cover that in the gifs and focus on SCOTUS.

With just eight members at the moment, the Supreme Court could go one of two ways on Whole Women’s vs. Hellerstedt, which concerns a Texas law designed to regulate almost all abortion clinics in the state out of existence by requiring all abortions, including medical abortions that simply involve taking a pill, to take place in a surgical theater and be performed by a doctor with admitting privileges to a nearby hospital.

All eyes  rest on swing vote Anthony Kennedy, whose vote will determine if the law stands or falls. If it falls, that’s a victory not just for Texas but across the nation, because a 5-3 vote will set a precedent against similar laws (known as Targeted Restriction of Abortion Providers, or TRAP, laws) elsewhere. If it stands on a 4-4 vote, the lower court’s ruling upholding the Texas TRAP law will stand but will not set any precedents for the rest of the country.


Here’s what you need to know about the case:

At Slate, legal analyst Dahlia Lithwick has an important piece on how the Court’s three female justice have upset the balance of power in the institution, by “pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid.” Basically, Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan showed little patience for the line of argument put forth by the lawyers for the state of Texas, and steamrolled past Chief Justice John Roberts’ objections to force the abortion rights opponents to defend positions that were basically indefensible.

It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules. Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.

The main thrust of the three justices’ pointed questions was whether Texas’ laws actually protected women’s health at all–which is, after all, their purported purpose. Or, they asked (semi-rhetorically), is the whole point of the laws to create an undue burden that prevents women from accessing abortion services and instead carrying their pregnancies to term?
Dumpster fire
The justices pointed again and again to the fact that abortions are significantly safer than other medical procedures, like colonoscopies, routinely performed in outpatient clinics rather than elaborate surgical theaters; that Texas hypocritically claimed women in El Paso, which will have no clinics if the law is upheld, can just go to New Mexico for abortions despite the fact that New Mexico does not have the strict TRAP rules supposedly necessary to protect Texas women’s health; and that there have been no instances documented of women failing to receive treatment for abortion-related complications at a hospital under the current system.
As another female legal analyst, Linda Greenhouse, points out in the New York  Times, “Courts shouldn’t ignore the facts on abortion rights.” Among the facts Greenhouse argues the Court should not ignore: The fact that Texas already has strict abortion regulations and “a commendable safety record”; the fact that have that if the law goes into effect, there will be no abortion clinics in Texas west of San Antonio; and the fact that the lieutenant governor of the state, David Dewhurst, had gloated publicly about the fact that the bill would make abortion unavailable in the vast majority of Texas counties.

In Casey, the case that enabled states to restrict abortion rights for health reasons, the court ruled that “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

“Unnecessary health regulations,” Greenhouse writes. “Are admitting privileges necessary? Do safe abortions require mini-hospitals? How are judges to ensure that a health-justified regulation that will close clinics — three-quarters of them in Texas, leaving at most 10 open — actually promotes health and isn’t just a backdoor way of cutting off access to abortion by means that the Supreme Court has deemed unconstitutional?”

The Times’ editorial board also weighed in on the case, breaking down the many reasons Texas’ harsh restrictions are unnecessary and do not protect women’s health, and concluding,

“Lawmakers claimed that the law, which requires abortion clinics to meet the strict standards of ambulatory surgical centers and their doctors to have admitting privileges at local hospitals, was necessary to protect women’s health. Everyone knows this is a lie. Even the law’s backers have openly admitted it. …

“Texas’ law, like similar ones around the country, was written by anti-abortion activists with the sole purpose of shutting down clinics. Its two main requirements have nothing to do with protecting women’s health.”

Finally, the Christian Science Monitor explores a side of the abortion access debate that most people never see: Girls who need to get a judicial bypass to circumvent the state’s parental notification law are finding it harder and harder to obtain both a bypass and, once they’ve cleared that hurdle, to access abortion services.


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