For the first time in nearly a decade, the U.S. Supreme Court steps back into the battle over abortion rights today, hearing argument in a Texas case that threatens the core principles underlying a woman’s right to choose as first set down in Roe v. Wade.
The question for the justices in Whole Woman’s Health v. Hellerstedt is just how far a state can go in regulating abortion before it unduly burdens a woman’s constitutionally protected rights.
More than 80 groups of scholars, advocates, physicians and others sharply divided on the issue have filed friend-of-the court briefs with the court, and many will likely also be gathered outside the court this morning as well in protest — testaments to the interest in the outcome.
Here’s a look at what’s at stake.
The war on abortion rights has taken a different turn in recent years, moving from the outright bans rejected by the high court in Roe to legislation that increasingly restricts a woman’s access.
Efforts to enact so-called TRAP laws (“targeted regulations against abortion providers”) accelerated in the summer of 2013 as Texas enacted a package of restrictions – over the objections of women in the legislature, including the sneaker-wearing and filibustering Wendy Davis – which among other things requires abortion clinics to meet the building requirements of ambulatory surgical facilities and mandates that abortion providers have admitting privileges at a local hospital.
More than half of the abortion clinics in Texas have since closed, while lawmakers in more than 20 other states have adopted similar TRAP laws under the pretense of protecting women’s health.
Their ability to slip those laws by otherwise moderate constituents has been facilitated in part by some common misperceptions about abortion shared by a surprisingly large number of Americans.
A new Vox poll shows that most significantly underestimate the number of women here who will have an abortion in their lifetime, believing that fewer than 20 percent will have the procedure. In reality, according to Vox, that number is closer to 30 percent.
At the same time, most Americans overestimate the safety risks associated with abortion, a procedure with even fewer complications than others perceived to be low-risk, like wisdom teeth removal.
What’s resulted are TRAP laws built upon a false premise, writes Sarah Kliff at Vox:
These misperceptions aren’t just unfortunate psychological quirks; they work together to contribute to a view of abortion as being infrequent and risky for the women who have one. That ultimately shapes the way we regulate abortion in the United States and how we judge which restrictions ought to stand.
Our misperception of abortion as rare means that we think few women are affected by new abortion laws and regulations, when many are.
And our misperception of abortion as dangerous for women who have them allows more laws that reduce abortion access — like Texas’s new restrictions — under the guise of improving the safety of an already safe medical procedure.
North Carolina TRAP
Conservative lawmakers in North Carolina fired the first salvo in the fight here over women’s reproductive rights quickly after taking over the legislature in 2011, enacting the Woman’s Right to Know Act in July of that year over a veto by then-Gov. Bev Perdue.
U.S. District Judge Catherine Eagles later overturned the law — which required that a doctor perform an ultrasound on a patient at least four hours before an abortion, show her the images and describe what is seen — holding that lawmakers could not compel doctors “to speak the ideological message of the state.” The Fourth Circuit agreed with Eagles, and the U.S. Supreme Court later refused to hear the case, leaving the lower court rulings in place.
In the meantime the conservative majority rushed more abortion restrictions into passage, packaging several into a gutted motorcycle safety bill that was slipped on to the calendar on the eve of the July 4 holiday in 2013.
Labeled the “motorcycle vagina” bill by opponents, the law, as ultimately signed by Gov. Pat McCrory (despite campaign promises to the contrary), called for regulations holding abortion clinics to the same standards as ambulatory surgical centers — standards that could force the shutdown of many if not most clinics in the state, according to pro-choice groups.
Those regulations as ultimately adopted by the Department of Health and Human Services turned out to be mild in comparison to restrictions in other states.
But legislative intrusions into women’s health care decisions continued this year as lawmakers pushed through a 72-hour waiting period for abortions, saying that such a change was necessary to protect women from the consequences of what the conservative majority deemed to be an otherwise hasty decision.
Opponents derided that purpose as patronizing and insulting to women.
“This is not about respecting or supporting women,” state Rep. Tricia Cotham (D-Mecklenburg) said, noting that other life-changing procedures did not require a waiting period. “It’s about creating barriers that unfairly harm especially women of very limited financial means.”
“Abortion is a deeply personal decision,” Cotham added. “My womb and my uterus are not up for your political grab.”
The bill passed nonetheless, and for a second time, McCrory broke his campaign promise of no more abortion restrictions by signing the bill into law in June. North Carolina is now one of just four states requiring such a delay.
The case before SCOTUS
The Texas case landed in the Supreme Court last June after the 5th U.S. Circuit Court of Appeals upheld the restrictions at issue and the challenging clinics sought a stay from the high court, pending their appeal there.
The justices granted that stay by a 5-4 vote, with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissenting.
That vote may prove to be a forecast of the ultimate ruling in the case, as it shows the court’s swingman Justice Anthony Kennedy siding with the liberal justices (at least for purposes of a stay). If he continues in that posture, the court could reverse the Fifth Circuit and strike down the restrictions by a 5-3 vote.
Otherwise, with the absence of Justice Scalia, the court might deadlock 4-4 and the Fifth Circuit decision then stands. Such a ruling would mean the Texas regulations can go into effect, but would have no precedential effect on regulations being challenged elsewhere.
Kennedy also is the only remaining justice on the court who joined with majority in the court’s 1992 decision in Planned Parenthood v. Casey, upholding Roe and ruling that states could impose restrictions on abortion only as long as they did not impose an “undue burden” on the mother.
The parameters of the “undue burden” test — defined in Casey as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion”– are at the heart of Whole Woman’s Health.
Texas argues that its restrictions were intended to protect women’s health, but the clinics contend that they actually have the opposite effect, endangering women’s health by severely limiting access to abortions.
The state adds that even with the restrictions a number of clinics near major cities will remain open.
But the clinics say the regulations have sharply restricted abortion access — with the number of open clinics statewide dropping from 40 to 20 since the law’s passage and by another 10 should the high court rule for the state — overburdening those remaining open and forcing women in some parts of the state to travel more than 150 miles for abortion services.
The net effect of the restrictions would be to “delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy.”
A decision by the court is likely to come in late June.
Sharon McCloskey is the courts, law and democracy reporter for N.C. Policy Watch.