I've had time to digest the Supreme Court's historic decision in Whole Woman's Health v. Hellerstedt and while it was a victory for women, it may be premature to call this the turning point in the struggle for abortion rights.
By striking down Texas's infamous law, HB2, which imposed admitting privileges requirements and surgical-center construction mandates on abortion clinics, the court helped expose targeted regulation of abortion provider (TRAP) laws for what they are: medically unnecessary regulations designed to be so burdensome that abortion clinics will be forced to close.
As Justice Ginsberg wrote, "In truth, complications from an abortion are both rare and rarely dangerous."
For me, the key part of the decision is its unwavering focus on women's health. The law's defenders tried to elevate the state's right to dictate abortion care practices by fiat, but the court was having none of it. Instead, the court made clear that the health benefits to women -- actual, evidence-based health benefits -- must outweigh the obstacles to access created by these kinds of regulations.
I've written here before about my strong feeling that abortion, like contraception, is essential health care that saves lives.
When we talk about procedures and treatments that prevent heart attacks, we call it cardiac care. Children receive pediatric care, and anyone who takes ibuprofen is dealing with pain care.
So why would anyone object to calling a legal medical procedure that one in three women will utilize in their lifetime abortion care?
Abortion is a common and necessary aspect of women's reproductive health, and I am far from alone in objecting to right-wing lawmakers constantly politicizing it. According to Think Progress, recent polling indicates that large majorities of people, including those who self-identify as pro-life, believe that if and when a woman decides to have an abortion her experience should be "comfortable," "supportive," without pressure," "non-judgmental," "affordable," "informed by medically-accurate information," and "without added burdens."
Not shameful. Not stigmatized. Not politicized.
Unfortunately, since Roe v. Wade affirmed a woman's right to obtain an abortion, the Supreme Court has revisited the issue by applying a political lens to women's health care access. In Planned Parenthood v. Casey, the Court broadened the states' authority to regulate abortion, establishing viability as the new reference point for whether an abortion law was valid or not, and upholding among other provisions, a mandatory 24-hour waiting period.
Writing in Mother Jones, Propublica's Nina Martin said,
After Roe established abortion rights, Planned Parenthood v. Casey reined them in, creating a new legal standard that gave states greater leeway to regulate the procedure. Many conservative legislatures took advantage to enact a series of increasingly tough laws that reproductive rights advocates argue have made it more difficult--and sometimes impossible--for women to obtain abortions.
Martin goes on to say,
It took the huge tea party wave of 2010 for abortion opponents to gain the political clout to push through laws like Texas' HB 2. Since 2011, states in the South and Midwest have passed more than 300 abortion restrictions--TRAP laws, admitting privilege requirements, rules for how medication abortions may be performed, bans on abortion after 20 weeks (and sometimes earlier), longer waiting periods, and greater impediments to teenagers seeking abortions without parental approval. The central question raised by these laws goes directly to the 24-year-old ruling in Casey: How undue must a restriction become before it renders the right to abortion meaningless?
Now, the Supreme Court has spoken, at least in reference to regulations like HB2 that fail to offer "medical benefits sufficient to justify the burdens upon access."
Clearly, unmistakably, indisputably, great news. BUT...
It will take some time for the shuttered clinics to come back online, so the damage done by extremists is still being felt by many women. AND...
In other states where these laws have gone into effect, providers will still have to spend scarce resources litigating to strike the TRAP laws in effect there. AND...
This decision did nothing to overturn laws like the infamous Hyde Amendment that block Medicaid and other federally-funded insurance plans from covering abortion care.
That is why Congress must act. Two bills, in particular, have been introduced and both should be passed and signed into law as soon as possible. First, the Women's Health Protection Act, H.R.448 / S.217, would prohibit states from selectively restricting and regulating abortion care without significantly advancing women's health or the safety of abortion services. This legislation would move states into compliance with the Supreme Court's decision in Whole Woman's Health -- and it goes further, banning not only admitting privileges and mini-hospital requirements like Texas's HB2, but also medically unnecessary telemedicine restrictions, repeat-visit requirements, and forced waiting periods that pose a threat to a woman's health.
Second, the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act, H.R.2972, would overturn the Hyde Amendment and require the federal government to include abortion care in all of the insurance plans it funds including Medicaid, federal employees' health plans and military personnel health plans. Every woman who seeks an abortion should be able to have full insurance coverage for it, like any other aspect of health care.
I'll acknowledge that the current Congress is not likely to enact these bills, with both the Senate and House controlled by Republicans deeply hostile to women's rights. But the good news is, both pieces of legislation have a staunch champion Hillary Clinton -- yet another reason to elect her President in November. As I wrote here last February,
Secretary Clinton understands that reproductive health care is part and parcel of women's health, not some exotic outlier that gets forgotten or downplayed when health policy is being hammered out. Her leadership on reproductive health care goes way beyond the "I support a woman's right to choose" declaration we've come to expect from Democratic candidates. Hillary Clinton has been a leading voice in not only defending access to abortion, but in demanding public funding for abortion care like any other health care.
I've said it before and I'll say it again -- Abortion care is health care. Now, the Supreme Court is saying it too.
So Congress, where's your voice?