Can Three Tough Female Justices Transform Texas’ Abortion Laws?

On March 2nd 2016, the Supreme Court heard rousing oral arguments from three passionate female justices challenging Texas’s omnibus anti-abortion bill. The outcome of this ruling would not only affect Texans but millions across the country, and is the most significant case of its kind since Roe v. Wade (the landmark case that ruled banning abortion unconstitutional).

Whole Women’s Health v. Hellerstadt is specifically concerned with one key question: do the stringent standards that HB2 forces abortion clinics to meet impose an “undue burden” on a woman’s right to terminate her pregnancy? Does the law actually make it more difficult, or maybe even impossible, for many female Texans to exercise their right to an abortion?

Undue Burden
Women’s health advocates rally outside the Whole Women’s Health v. Hellerstadt hearing.

There are two major provisions being challenged in the case, the first requiring that abortions be done in “ambulatory surgical centers” with hospital-grade facilities, and the second requiring abortion doctors to possess admitting privileges at a hospital within 30 miles of the clinic. The state says it enacted these provisions to “protect the health and safety of women,” but virtually the entire established medical profession, both in Texas and nationally, disagrees. This regulatory scheme threatens to shut down all but 10 clinics in the state, leaving millions of women with restricted access to reproductive care, and setting a dangerous precedent for the rest of the country.

Lucky for those in favor of the bill’s reform, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg won’t sleep until women across the country have access to safe, affordable options when it comes to reproductive health.

The Justices
Supreme Court Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg.

The March 2nd hearing lasted 90 minutes, and saw the female justices providing impassioned, thorough, and necessarily aggressive arguments when questioning HB2’s merits. At one point, Stephanie Toti, the lead counsel representing Whole Women’s Health, confirmed that a woman who could have once taken the abortion pill safely and legally at home “now has to travel 200 miles or pay for a hotel” in order to satisfy HB2’s requirement that the two pills, meant to be taken over two days, be consumed in an abortion facility. Sotomayor responded with, “I’m sorry, what? She has to come back two separate days to take it, when she could take it at home? She now has to travel 200 miles or pay for a hotel to get those two days of treatment?”

Toti confirmed that there is indeed no reputable evidence there is a medical benefit to taking the pills at “a ­multi-million­-dollar surgical facility.”

In another example of dogged determination, Justice Ginsburg questioned Texas Solicitor General Scott Keller’s claim that “abortion is legal and accessible in Texas,” as he pointed to the state’s most populous cities as proof that the procedure would remain available elsewhere if the court upheld the law.

Not convinced, Ginsburg inquired, “Well, how many women are located over 100 miles from the nearest clinic?”

Keller then conceded that 25 percent of women, roughly 1.5 million, are located over 100 miles away from an abortion clinic. Seeing nothing wrong with that number, he then went on to reason that some of these women could always go to nearby New Mexico for their procedure, where the restrictions on abortion clinics are considerably less than in Texas.

A patient advocate waters plants at Whole Woman's Health in McAllen, Texas, which closed after new rules took effect, but was lucky enough to be reopened in September when it was granted an exception to some of the regulations.
The Whole Woman’s Health in McAllen, Texas, which closed after new rules took effect but was fortunate enough to reopen when granted an exception to some of the regulations.

“That’s odd that you point to the New Mexico facility,” Ginsburg retorted. “New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would – standards which, Texas claims, are absolutely critical to protect women. So if your argument is right,” she  continued, “then New Mexico is not an available way out for Texas, because Texas says: to protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right,” blatantly pointing out the hypocrisy and absurdity of Keller’s solution.

Slate’s Dahlia Lithwick, who was in attendance of the hearing, observed that, “Chief Justice on the case, John Roberts, seemed to have no choice but to throw up his arms as the female justices barreled through, letting them run the show and giving them extra time if they asked for it.”

During the hearing, reproductive rights advocates rallied outside, hopeful and unwilling to give up their fight. When advocate Sadie Hernandez was asked if she had seen the transcript from the arguments, she replied that she hadn’t yet, but people inside had told her that, “RBG just killed it.”

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