Demonstrators on both sides of the Texas abortion case at the Supreme Court. (vpickering/Flickr)
The Supreme Court just started hearing a major and super controversial abortion case. Every single woman in America should know about it. Specifically, these 11 things.
1. This is the first big abortion case the Court is ruling on abortion in over 20 years
This case is formally known as Whole Woman's Health v. Hellerstedt but it's often just called "the Texas abortion case."
The last really major Supreme Court abortion decision was in 1992. It was called Planned Parenthood v. Casey.
Here's what's interesting: Hellerstedt is basically about that 1992 case. Because Casey was about whether states could create restrictions on abortions that don't create an "undue burden" on women seeking them. That's what Hellerstedt is about.
(There was also a big case in 2007, when the Supreme Court OK'd a federal law banning a procedure known as partial-birth abortion. That procedure is relatively rare compared with other types of abortions, so the case isn't as impactful as Casey.)
2. This case is about abortion clinics
Abortion clinics have to be equipped to also function as surgical centers, like mini-hospitals.
Abortion doctors have to be affiliated with nearby hospitals. (In small communities in conservative Texas, abortion providers often can't get admitting privileges at local hospitals.)
Supporters say the law protects women's health and safety.
Critics say the the Texas law doesn't protect women's safety at all. They say HB2, which created strict regulations on abortion clinics, has so far forced over 20 clinics to close. There are about 18 left now. Critics of the law say that has restricted access to abortion in Texas, which, they say, is an "undue burden."
3. The big issue is "undue burden"
When we talk about reproductive rights and abortion, "undue burden" is when law or restriction makes it significantly harder to get an abortion. The right to seek an abortion was upheld by the Supreme Court in the landmark case known as Roe v. Wade.
Then in 1992 (in Casey) the Court basically said it's not OK to create other laws that make it really difficult or effectively impossible to get an abortion. If it's a right, you can't make it too hard to exercise that right. Not OK.
Still, a lot of states have kept trying to put lay down more restrictions. One example is a waiting period, which requires a woman to go to a clinic to request an abortion, then return 24 hours later. (If the clinic is really far from your house, and if it's hard or impossible for you to take off from work or other responsibilities 2 days in a row, that could be an "undue burden.")
Lack of access could also be an undue burden. If the state says "Sure, the law says you can have an abortion ... but every abortion clinic in our state has to close," that's against the law.
(There are also restrictions that don't create undue burden, and those are totally OK.) When states make laws that critics say create an undue burden, those laws get taken to court.
We're talking about undue burden in this Texas case for three main reasons:
Geography. Texas is a big state, and the few remaining clinics in the state are hundreds of miles away from where a lot of women in rural areas live.
Capacity. Texas has 5.4 million women of reproductive age and sees about 70k abortions a year. The people challenging the law say there's no way a handful of clinics can handle the demand, and if they can't, that's an undue burden.
Delay. If clinics are few and far between and busy, if you want an abortion, it could take weeks to get an appointment. That could mean the difference between terminating a pregnancy in the first trimester and the second trimester, which is a big difference for a lot of reasons. One is that second-trimester abortions are riskier.
4. It's also about abortion methods
There are two basic ways pregnancies are terminated: by medication and by surgical procedure. Medical (by medication) abortions are newer than surgical ones, and they're safer. Across the country, now more abortions are induced by medicine than performed by surgery. But in Texas, because of that law, more women are having surgical abortions.
5. The case is being decided by 8 justices
The Supreme Court is made up of 9 justices, but Justice Scalia died in February, so right now there are 8, and they are going ahead with hearing and deciding on cases. (Obama will nominate a justice to replace Scalia, but the Republican leaders in the Senate vow to block whoever it is, sight unseen, so that's going to go on for awhile.)
Four of the justices are considered liberal: Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Three are considered to be conservative: Chief Justice John Roberts, Samuel Alito, and Clarence Thomas. (So was Scalia.)
That leaves Justice Anthony Kennedy. He's a swing justice, which means he's not totally liberal and not totally conservative. His vote will be critical.
6. The justices seem divided on this case
Congress is really partisan--it's way rarer than it used to be for Democrats and Republicans to agree or even compromise. But the Supreme Court isn't as divided as you might think. With Scalia, the liberal/conservative split on the Court was 5-4, but they didn't vote 5-4 very often.
In this abortion case, though, the Court does appear to be divided liberal vs. conservative. Which means we expect the liberals to vote one way and the conservatives the other way.
So if Kennedy goes with the liberals, we'll have a 5-3 decision. If he goes with the conservatives, we'll have a 4-4 decision.
7. The 5-3 outcome
If Kennedy agrees with his more liberal colleagues, what they'll agree on is that HB2 creates an undue burden on access to abortion in Texas and is, therefore, unconstitutional. That will strike the law down.
8. The 4-4 outcome
Hellerstedt was decided before by a court known as the Fifth Circuit court. That court upheld the Texas law--said it's constitutional, it's fine. That decision was appealed to the Supreme Court, which is where we are now.
If Ginsburg, Breyer, Kagan, and Sotomayor vote one way and Kennedy, Alito, Thomas, and Roberts vote the other way, the decision of the Fifth Circuit court will stand. Meaning in Texas, any abortion clinic will have to also have surgery facilities, and any abortion doctor will have to have admitting privileges at a local hospital. Meaning that Texas will have few abortion clinics.
9. The third scenario
We won't be surprised if Justice Kennedy votes to send the case back to a lower court in Texas for more "fact-finding" about capacity.
Meaning he wants more info on whether the Texas law 1. really did force about 20 clinics to close and 2. really did make it harder for women to get an abortion in Texas because the few remaining clinics can't handle demand.
If this is how it goes, a final decision on whether this Texas law is constitutional or not would come in another year or more--when we have a new president and a full Court.
10. The outcome of this case will affect millions of women in Texas and beyond
States have created hundreds of laws that restrict abortion. Critics say some of those create undue burdens, and courts have agreed. This is the first one since 1992 that has reached the highest court in the country. How the Court rules will affect not only tens of thousands of women in Texas, but also access to abortion around the whole country.
If the Court says HB2 is totally fine, more laws like it will probably spring up in other states. Ruling that HB2 is unconstitutional will kill other laws like it.
11. The case is going to become an issue in the presidential election
The Court will probably rule on the case in late June. And guess when the conventions are where we'll finalize our two nominees for president? July. So the decision will come out just before the general election gets into full swing.
This article was written by Holly Epstein Ojalvo and originally appeared on Kicker. Kicker explains the most important, compelling things going on in the world and empowers you to get in the know, make up your own mind, and take action. For more, check out the Kicker site, like their Facebook page, or subscribe to their email newsletter.