The XX Factor

The Supreme Court Exposed the Anti-Abortion Sham of “Protecting Women’s Health”

Abortion-rights activists celebrate the Whole Woman’s Health decision on the steps of the Supreme Court on Monday in Washington.

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The Supreme Court struck down two Texas restrictions on abortion providers in a landmark case on Monday, offering the strongest affirmation of the constitutional right to safe, legal, accessible abortion since Roe v. Wade.

Justice Stephen Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedt is an unequivocal rejection of the mistruths at the heart of a fast-spreading rash of state abortion restrictions that shut down abortion clinics under the guise of protecting women’s health. Texas lawmakers have argued that the two provisions of HB2 challenged in Whole Woman’s Health—one required abortion providers to have admitting privileges at nearby hospitals; the other demanded that abortion clinics be outfitted like hospital-grade operating theaters—were necessary to prevent abortion-related complications and deaths.

Of course, abortions are already some of the safest medical procedures out there. The intended and actual effect of the laws was not safer abortion clinics—it was fewer abortion clinics, period. Slate’s Dahlia Lithwick asked in March, “Will the Supreme Court see through the charade?

The court more than saw through the anti-abortion crowd’s farce. It dismantled it bit by bit, exposing its every hypocrisy and self-contradicting argument. All the Supreme Court had to do was rule that the effect of the laws presented an undue burden to women’s access to abortion. Breyer went beyond the undue burden finding to knock down the very justification of these laws, proving that the thin pretext of keeping women safe was a sham.

In his opinion, Breyer noted that Texas had “no significant health-related problem for the new law to cure,” since abortions rarely result in dangerous complications, and if they do, they’re far more likely to arise in the days and weeks after the procedure. His opinion cites examples of several medical procedures far more dangerous than abortions that Texas still allows outside of surgical centers—colonoscopies, child birth, liposuction, medical treatment after a miscarriage.

Seeing all the facts laid out with such judicial rigor feels like a vindication of the arguments abortion rights advocates have been making for years. “We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health,” Breyer wrote. “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

Breyer also acknowledged that the admitting-privileges provision was more a political stunt than a practical safety measure, especially since many hospitals will refuse admitting privileges to abortion providers for religious or political reasons. Monday’s opinion uses the example of an OB-GYN who delivered more than 15,000 babies in 38 years of practice but couldn’t get admitting privileges as an abortion provider at any one of the seven hospitals near his clinic. Thus, Breyer wrote, “the admitting-privileges requirement does not serve any relevant credentialing function.”

Texas had argued that HB2 didn’t pose an undue burden to abortion-seeking women because the state’s existing abortion clinics were already operating under capacity and could hire more practitioners if other clinics were forced to shutter. Breyer wrote that argument defies “common sense,” which suggests that “a physical facility that satisfies a certain physical demand will generally be unable to meet five times that demand without expanding physically or otherwise incurring significant costs. … We disagree that, according to common sense, medical facilities, well known for their wait times, operate below capacity as a general matter.”

A Supreme Court justice tearing down an anti-abortion argument based on pure common sense is a mark of decisive victory, but the best part of Breyer’s opinion is his contention that the undue burden HB2 placed on women’s access to abortion actually negated any spurious health benefit a woman might gain from a provider’s admitting privileges or a clinic’s surgical-center qualifications:

In the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand may find that quality of care declines. … These effects would be harmful to, not supportive of, women’s health.

For icing on that cake, Justice Ruth Bader Ginsburg wrote in a concurring opinion that the undue burden Texas created would cause unsafe, illegal abortions rather than curb the practice at all, a prediction that has already been borne out by research in Texas and around the world. “It is beyond rational belief that H. B. 2 could genuinely protect the health of women,” Ginsburg wrote. “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.” In an era marked by the rise of lawmakers who prioritize political games over facts when it comes to reproductive health, it’s reassuring to see the court strike such a decisive blow against sham laws based on lies. It’s a major political win for the reproductive justice movement, but more importantly, it’s a strong safeguard for the quality and autonomy of future women’s lives.