WASHINGTON -- The Supreme Court hasn’t heard an abortion case in nine years. But pro-choice activists are hoping they’ll decide this fall to take up a major Texas abortion case that threatens to close all but 10 clinics in the state.
The last case the Supreme Court heard on abortion would initially appear to have little in common with the one now at its doorstep. Gonzales v. Carhart, decided in 2007, concerned a particular method for second-trimester procedures. The current Texas case, Whole Woman’s Health v. Cole, is about whether clinics performing abortions must be constructed as mini-hospitals and whether doctors doing the procedure must have admitting privileges to nearby hospitals so they can follow patients there in the exceedingly rare case of a complication.
But the major similarity between the two cases is that both turn on whether the restrictions on abortion serve what the court has deemed two legitimate government interests: Protecting the life of the mother or protecting “potential life.”
When the court legalized abortion with the Roe v. Wade ruling in 1973, it said that states could not place restrictions on the procedure before a fetus would be viable outside the womb. But twenty years later, the court modified that decision and gave the green light to restrictions on the procedure so long as they do not pose an “undue burden” on patients seeking it. States may try to persuade patients not to go through with the procedure with laws like mandatory waiting periods, according to the court, but they couldn’t place a “substantial obstacle” in the path of patients who want to have an abortion.
In 2007, the court’s conservative majority, including the perennial swing Justice Anthony Kennedy, upheld the federal government’s 2003 law outlawing “partial-birth” abortions. The law used a term coined by anti-abortion advocates rather than the medical term used by doctors, “intact dilation and extraction” (D&X). Major medical associations such as the American College of Obstetricians and Gynecologists said that D&X was, for some patients, safer than the method used in 90 percent of second-trimester abortions, called dilation and evacuation (D&E), because it limited the number of times that providers had to insert instruments inside their patients to terminate the pregnancy.
Though the Supreme Court had struck down a Nebraska law in 2000 that was similar to the eventual D&X ban, their 2007 decision relied on the Republican-controlled Congress’ argument that D&X was never medically necessary to preserve a patient’s health and that the procedure was “gruesome and inhumane.” Justice Kennedy wrote that there was enough medical uncertainty to conclude that the law did not impose an undue burden on patients. But he was particularly swayed by the idea that D&X did not express “profound respect” for the potential life of the unborn.
Yale Professor Priscilla Smith, who argued the case for the doctors trying to stop the law, told The Huffington Post that requiring patients to have a different kind of abortion procedure to promote “potential life” is counterintuitive, because the whole point of an abortion is to terminate a pregnancy. Justice Ruth Bader Ginsburg made the same argument in her dissent for the liberal wing of the court.
“The abortion is going to result in the end of the pregnancy no matter what method you use, so that seems like a crazy way to protect potential life,” Smith said.
Even though medical associations and doctors who had experience using the method said D&X was safer than D&E for women with serious medical conditions, the court didn’t buy the safety argument, writing in its decision that there was enough medical uncertainty or debate to rule in favor of the government.
In the most controversial part of the court’s ruling, Kennedy justified upholding the ban by suggesting that the debate over the method would persuade some patients to rethink their decision, furthering the government’s "potential life" interest. He went out of his way to argue that abortion harms women by causing “severe depression and loss of esteem."
But the fears of abortion providers alarmed by the Supreme Court’s 2007 ruling were not borne out because Kennedy’s ruling was written narrowly. The court’s majority said it would be illegal for doctors to begin the procedure with the intention of using D&X, but if the procedure ultimately ended up resembling the method because of ensuing complications, the doctor wouldn’t be criminally liable.
“I think the way [Carhart] was narrowly interpreted, it didn’t have the impact we feared, which is good -- but it has caused some doctors to alter their methods in certain ways that may not be so harmful, but were completely unnecessary and serve absolutely no purpose,” Smith said. “Did it open up this idea that you could go after D&E, or medical abortion? Yes, to the extent that people against abortion are seeing glimmers of hope. They will take a glimmer in any case and exploit it to its fullest extent -- which just means you have huge amounts of litigation over these issues.”
Indeed, after the Carhart decision, states looking to restrict abortion passed hundreds of laws requiring mandatory ultrasounds and prohibiting insurance coverage for the procedure, among many other types of measures. It’s only in the last year that states have felt emboldened to pass laws banning D&E, citing the Carhart decision. (Courts have blocked laws passed by Kansas and Oklahoma outlawing the method.)
The Texas Case
While the above laws make it more challenging for patients to obtain abortions, the laws at the heart of the Texas case instead target providers. Texas’ law requires outpatient clinics providing abortions to spend anywhere from a few hundred thousand dollars to millions to upgrade to ambulatory surgical center (ASC) standards. The law also requires doctors to obtain admitting privileges from local hospitals. Some hospitals will deny those privileges if a doctor doesn’t refer enough patients, which is a bit of a catch-22, since the rate of major complications from abortions requiring a hospital referral is significantly less than 1 percent.
The official argument for states that have passed ASC and admitting privileges laws is that the regulations protect women’s health. (Sometimes lawmakers slip up and reveal that what they really want is to close clinics in their state.)
The 5th Circuit Court of Appeals upheld Texas’ law after the state was sued, saying that as long as there was a rational basis for passing the regulations, it didn’t have to conduct an inquiry into whether they actually serve a health interest. Other appeals courts have rejected similar state laws, saying the laws didn’t serve the interests they claimed to serve.
Texas has urged the Supreme Court to not take up Whole Woman’s Health v. Cole, arguing that the clinics that would remain haven’t proven they wouldn’t be able to see more patients if non-ASC clinics close, or that more ASCs wouldn't start offering the procedure. If the Supreme Court does take up the case, it would be the first time since 1993 that it has considered whether an abortion-related law serves the interest of protecting a patient’s health.
“I’m very nervous, because the Supreme Court clearly doesn’t understand science, but they also don’t understand common sense,” said Dr. David Grimes, a former chief of the Centers for Disease Control and Prevention’s abortion surveillance division. “To suggest that you need to do an abortion in an ASC is nonsense, the data on this has been clear for decades … There’s no evidence at all that having an ASC improves safety.”
Since the court upheld mandatory reporting requirements for doctors in 1993 by analyzing whether those requirements served the government’s interest in protecting patient health, and since it analyzed whether the "partial-birth" abortion ban furthered the potential life interest in 2007, Smith is hopeful that it will do the same sort of interest-intensive inquiry in the Texas case, but come to a different conclusion.
“Casey is careful to say you shouldn’t be able to have a bad purpose,” she said. “You shouldn’t be able to pass off unnecessary regulations that are meant to restrict or even meant to prevent some women from getting abortions as benevolent health regulations. You shouldn’t be able to hide behind the health claim in order to promote your interest in preventing abortions, which is what they’re trying to do. They’re really trying to serve their interest in dissuasion or prevention by claiming an interest in health, when it doesn’t exist.”
Before the law was passed, Texas had about 40 clinics; now, it has 19. If the Supreme Court declines to take up the case, that number would drop to 10 or fewer. In the meantime, waits for the procedure at the remaining clinics have increased and patients are going online or crossing the border into Mexico to obtain pills to self-abort.
While the court's decision the last time it considered abortion didn’t have as dramatic an impact as abortion advocates feared, the Texas case already has.
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