Much is at stake in a Supreme Court case over a Texas abortion law. The nation’s highest court heard oral arguments last week in Whole Woman’s Health v. John Hellerstedt. The case challenges restrictions placed on Texas abortion clinics under a law known as HB2. That law uses medical arguments to restrict women’s access to abortion in a state that has already decimated clinics.
Meanwhile, Indiana passed a draconian bill last week that so severely curtails abortion access that it has horrified reproductive rights advocates. Gov. Mike Pence is expected to sign it into law soon.
Both laws represent what Jessica Pieklo calls “a Frankenstein’s monster of anti-abortion legislation.” Pieklo is the vice president of law and the courts at RH Reality Check, and in an interview on “Uprising” she explained that such a bill “takes a bunch of different provisions and stitches them all together.” Such omnibus bills have become increasingly popular among Republican-dominated state legislatures, and they offer a macabre menu of constraints on women’s reproductive rights.
In the Texas case, the Supreme Court is considering two provisions of HB2 that abortion rights advocates have appropriately deemed “TRAP” laws, an acronym for Targeted Regulation of Abortion Providers. The idea is to place such unreasonable requirements on abortion clinics—such as meeting architectural standards of surgical centers even if no surgeries are performed, and doctors having admitting privileges at hospitals within 30 miles—that the clinics will be unable to meet them and be forced to shut down. The legislators pushing such bills expect us to believe that they and their anti-choice allies simply want to “raise the health and safety standards” of providers and are innocent of any ulterior motives.
Since 2001, according to Salon, 471 laws and regulations have been passed all over the country that chip away at women’s right to an abortion. It appears that many of the same conservative lawmakers who claim to uphold the U.S. Constitution see little irony in undermining the constitutional rights of women—including the right to terminate a pregnancy.
"Why are conservative lawmakers so insistent on thrusting American women into such devastating situations?"
At a Supreme Court hearing March 2, Texas Solicitor General Scott Keller defended the law that would lead to a dearth of abortion clinics in his state by referencing a clinic just across the border in New Mexico. Justice Ruth Bader Ginsburg jumped on his words, saying, “So if your argument is right, then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico [where clinics have more lax standards] and that’s perfectly all right.” Effectively undermining the medical argument Texas is making, she added, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?” Critics have pointed out that “the mortality rate associated with a colonoscopy is more than 40 times greater than that of abortion,” yet we don’t see Republican lawmakers demanding more stringent health and safety standards for colonoscopists.
According to Pieklo, the Supreme Court has held that “an abortion restriction cannot place an undue burden on a woman seeking to terminate a pregnancy.” But, she added, “the courts have really mucked up the standards on what constitutes an ‘undue burden.’ ”
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The Supreme Court is likely to deadlock 4-4 on the Texas law now that the anti-choice Justice Antonin Scalia has died. This would mean that the lower court’s decision stands—in this case, the U.S. Court of Appeals for the 5th Circuit ruled in favor of Texas. According to Pieklo, however, the Supreme Court could rule that the current stay on the law remain in effect while the case works its way back up through the appellate court system, which would be tantamount to only temporary success. If abortion rights advocates lose, it would mean that in the nation’s second-largest state, only nine clinics would remain open to serve millions of women.
There are currently 23 states with laws similar to those in Texas. About to increase that number to 24 is Indiana, where the Legislature passed an anti-abortion bill known as HB 1337. Indiana is the state that brought us the horrific case of Purvi Patel, a young Indian-American woman who is serving a 20-year sentence after being convicted on a charge of self-inducing an abortion and other counts. Pieklo described some of HB 1337’s provisions as “particularly cruel” and “heartless,” such as the one requiring women who abort to pay for the burial or cremation of their fetal tissue. Writer Bob Cesca appropriately derided it as “the macabre notion of paying for a mini-funeral for what amounts to, in most cases, a microscopic clump of undifferentiated cells.” He asked a tongue-in-cheek question: “Given that sperm constitutes half the genetic material of human life, should legislators also require half-funerals every time men in Indiana have orgasms?”
Already the state demands that women be counseled that “human physical life begins when a human ovum is fertilized by a human sperm.” This new Indiana bill additionally requires women wanting abortions to undergo numerous ultrasounds, wait 18 hours after first requesting the procedure, and listen to fetal heartbeats. Most disturbingly, it bans abortions based on the diagnosis of a disability such as Down syndrome even when it is likely that a fetus will not survive. It amounts to “an effective ban on abortion except in the most extreme circumstances,” Pieklo said.
The overall effect of these laws is to create such confusion among women all over the country about what is legal and what is not that even if they can access a clinic, they might be too scared to exercise their right. In other words, these laws are, according to Pieklo, “making abortion legal in name only, so that it is a right on the books and is not a procedure that patients can effectively access.”
Last December, a woman named Anna Yocca was charged with attempted first-degree murder in Tennessee after she tried to induce an abortion with a coat hanger 24 weeks into her pregnancy. She remains imprisoned. Tennessee has some of the most stringent anti-abortion regulations in the nation, and only three clinics in the entire state offer abortions.
Already there are reports of increasing numbers of women resorting to self-induced abortions. A New York Times op-ed found that Google searches “show a hidden demand for self-induced abortion reminiscent of the era before Roe v. Wade.” A study released last November found that at least 100,000 Texas women have “attempted to end a pregnancy on their own without medical assistance.” One of the study’s authors said, “As clinic-based care becomes harder to access in Texas, we can expect more women to feel that they have no other option and take matters into their own hands.”
Why are conservative lawmakers so insistent on thrusting American women into such devastating situations? Pieklo explained that “in an election cycle at the state level, anti-abortion restrictions are a great way to drive people to the polls and raise money.” She added, “With each election, anti-choice conservatives are getting bolder and bolder in their legislative attacks on reproductive autonomy.” So where does it end? If Congress or the Supreme Court doesn’t step in to block and roll back the anti-abortion laws, the U.S. will once more become a terrifying nation for women of childbearing age.