Hillary Clinton titled her 2004 memoir "Living History," and today, that's what we're all doing. The death of Supreme Court Justice Antonin Scalia has coincided with a schedule of arguments before the Supreme Court that will have an enduring impact on women's access to reproductive health care. The first of these cases, Whole Women's Health v. Hellerstedt, is being argued today.
The U.S Supreme Court has ruled in two major cases having to do with abortion care. Roe v. Wade, of course, was the landmark 1973 decision that established a woman's constitutional right to abortion, and in 1992, Planned Parenthood v. Casey affirmed Roe and held that states could not impose restrictive laws on abortion that placed an "undue burden" on women. The Court held that a law is invalid if its "purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability."
Anti-abortion extremists in Texas--among other places--didn't like the sound of that.
The Center for Reproductive Rights, which represents medical caregivers in their efforts to ensure women's access to safe and legal abortion care explains,
In an attempt to sneak around the Constitution and four decades of Supreme Court precedent, anti-choice politicians in Texas passed a law known as H.B.2 in 2013. Under the pretext of protecting women's health and safety, HB2 buries clinics under medically unnecessary regulations so burdensome as to make it vastly more difficult, if not impossible, to obtain safe and legal abortion care.
H.B.2, also known as the Texas clinic shutdown case, was the legislation that State Senator Wendy Davis filibustered so memorably, and if the Supreme Court allows it to fully take effect, Texas would go from having 42 clinics providing safe and legal abortion to just 10.
Two of the requirements that anti-choice legislators in Texas concocted to restrict access to abortion are:
- doctors who provide abortion services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic; and
- every health care facility offering abortion care must meet building specifications to essentially become mini-hospitals (also known as ambulatory surgical centers, or ASCs).
Neither of these requirements promotes women's health; they are intended to force the closure of abortion clinics, effectively nullifying, if not exactly overturning, Roe v Wade. After all, if abortion providers can be eliminated by bogus regulations, a woman's fundamental right to terminate her pregnancy is meaningless.
Whole Woman's Health follows an appeals court ruling that upheld the Texas clinic shutdown law. Justice Anthony Kennedy is widely considered the swing vote here. In the absence of Justice Scalia, should Kennedy side with his three conservative colleagues, the resulting 4-4 tie would allow the appeals court ruling to stand. But that wouldn't necessarily be the end of the matter.
According to the New York Times,
But a tie vote would not be a binding precedent, leaving uncertainty for other states and highlighting more than ever the importance of the next Supreme Court appointment. If the four anti-abortion votes were secure and the post was filled by another conservative, the court would quickly have opportunities to reach a binding decision next year, as states like Alabama, Mississippi and Wisconsin press to remove blocks on their admitting-privilege laws.
You can read veteran Supreme Court watcher Lyle Denniston's preview of this case on his SCOTUSblog here.
We should all be watching what happens in Whole Women's Health v. Hellerstedt, but this isn't the only historic case involving women's health that will be heard by an 8 member Court. Zubik v. Burwell follows last year's Burwell v. Hobby Lobby decision that allowed some corporations to claim a religious exemption to the Affordable Care Act's requirement that all insurance policies include contraception in their preventive care coverage. I'll have more to say about that in the coming weeks.
In the meantime, I invite you to take a look at Jon Oliver's a great segment about the clinic shutdown law (word to the wise: it's not G-rated), which it includes a look at one of the building specifications--the width of their hallways. You can see the hallway issue discussed a little more than four minutes into this clip, but the whole segment is worth watching.
And keep an eye on the Supreme Court, and the coming battle in the U.S. Senate over who gets to nominate a new Justice--President Obama, or Senate Republicans. I'll have more to say about this in the weeks ahead, too.