Turning the Anti-Abortion Tide

By Deana A Rohlinger

The Supreme Court’s Whole Woman’s Health v. Hellerstedt ruling effectively renders unconstitutional abortion restrictions in some two-dozen states, forcing abortion opponents to play defense for the first time in decades.

Olivier Douliery/Sipa USA via AP Images. Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court, as the Court hears oral arguments in the case of Whole Woman’s Health v. Hellerstedt on March 2, 2016.

For the first time since the Supreme Court’s landmark Roe v. Wade and Doe v. Bolton rulings established a constitutional right to an abortion in 1973, pro-life advocates find themselves squarely on the losing side of a watershed legal decision.

A Win for Abortion Providers, Patients, and Supporters—for a Change

By Carole Joffe

This piece appeared originally on Beacon Broadside. Cross-posted with permission.

Whole Women’s Health v. Hellerstedt. Demonstrations in front of the Supreme Court on June 23, 2016. Photo credit: Victoria Pickering

Original post, June 29, 2016.

“(I)t is beyond rational belief that H.B.2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’” So wrote Justice Ruth Bader Ginsburg in her concurrent opinion with the 5-3 majority in the landmark case, Whole Woman’s Health v Hellerstadt. 

This case represents a monumental victory for the abortion-providing community in particular, the abortion rights movement more generally, and of course, the more than one million American women each year who seek abortion care. When Texas politicians first introduced H.B.2, the notorious bill under contention (this was the bill that inspired state senator Wendy Davis’ marathon filibuster in the Capitol), there were forty abortion clinics in Texas; complex legal proceedings left about twenty in operation up till this ruling. Had the Court decided otherwise, the number of clinics that met the bill’s requirements—hospital admitting privileges for abortion doctors and Ambulatory Surgery Center (ASCs) regulations which stipulated that clinics must essentially conform to the physical specifications of small hospitals—would have gone down to less than ten.

The Court’s decision will have implications beyond Texas. Approximately 162 abortion clinics have closed since the first “backlash to Obama” election in 2010, which greatly increased the number of state legislatures with Republican majorities and Republican governors. Hundreds of abortion restrictions have been introduced since that time, many similar to the Texas ones that have been just struck down. To be sure, not all of the clinic closures are directly due to such TRAP (Targeted Regulation of Abortion Providers) laws, as they are called. Some have closed because of the retirement of a particular physician and the inability to find a replacement. Others, particularly those in urban areas where other clinics tend to locate, have closed because of an insufficient volume of patients, as the abortion rate has steadily declined. But there is no question that many of these clinics—and certainly most of the closed twenty in Texas that the Court took pains to note—folded because of their inability to come up with the money for the huge costs of making the upgrades demanded by the ASC regulation, a figure that could reach over a million dollars. The hospital admitting privileges requirement has arguably been even more challenging, as this was a problem fundraising could not solve. Whether because of their own anti-abortion sentiments, or, more likely, fear of protestors, Texas hospitals have been extremely reluctant to grant admitting privileges. But even granting ideological neutrality of hospitals, the admitting privileges requirement is complicated, ironically, by the fact that abortion is so safe:  therefore, it is impossible for providers to accumulate the ten patient admissions per year that many hospitals require for a physician to maintain privileges.