By Brooke McGee, George Mason University Law Student
A few weeks ago, the Supreme Court heard oral arguments in Whole Woman’s Health v. Hellerstedt, the most important abortion rights cases in decades. American women’s access to abortion services is risk. But before we can digest the stakes, let’s take a step back and review how the case arrived before the Supreme Court.
The case is centered on HB2, a restrictive law that passed the Texas legislature in 2013, which has resulted in clinic shut downs across the state. These law were drafted under the guise of protecting women’s health, but actually put medically unnecessary requirements into place known as targeted regulation of abortion providers (TRAP). The restrictions include: (1) abortion doctors are required to have admitting privileges at a hospital within 30 miles of the clinic and (2) every abortion clinic must comply with building standards as applied to ambulatory surgical centers (ASCs). TRAP regulations may seem well-intentioned, but are in fact designed to shut down clinics.
When most people hear hospital “admitting privileges” they think it means if there is a problem during the abortion procedure, than the woman can go to the hospital. That’s not it. It actually means that the doctor is akin to a staff member of that hospital and he or she has the privilege to admit a patient for a stay in the hospital without the say-so of any other doctors. Some hospitals require that physicians with admitting privileges admit a certain number of patients per year, and because abortion is one of the safest and most common outpatient procedures, providers will never meet this requirement. Furthermore hospitals don’t want to become entangled in abortion politics, so they regularly refuse to give out admitting privileges to doctors who perform abortions.
Moreover, HB2 requires abortion clinics to comply with the same building standards applied to ambulatory surgical centers. ASC facilities are essentially mini-hospitals, complete with wide hallways, large operating rooms, and advanced HVAC systems, among other requirements. The law stipulates that all clinics, even those that only provide medication abortions, must comply with building standards of ambulatory surgical centers. The cost is simply too high for clinics to comply with these standards and often result in clinic closures. Major medical associations, including the American Medical Association and the American College of Obstetrics and Gynecologists, oppose these requirements. Perhaps keeping clinics open is more important to women’s health safety and safety than these nonessential regulations.
If the Supreme Court upholds the legislation, all but nine or ten abortion clinics in Texas will close their doors. Put another way, five million Texas women will be served by a handful of clinics, potentially leaving many women in rural areas without an option hundreds of miles. With far fewer providers, women will face lengthier delays resulting in more expensive and complicated procedures.
With the death of Justice Antonin Scalia, the ruling in the Whole Woman’s Health case is more likely to be favorably decided for abortion rights advocates. Justice Scalia, a long time opponent of abortion rights, led the conservative bloc on the Court. Without Scalia’s vote, the justices, if split on ideological lines, might tie with a vote of 4-4. However, some legal scholars speculate that Justice Kennedy, a swing-voter on certain social issues, might vote with the progressive justices to bring the vote to 5-3.
If HB2 is upheld, TRAP laws will be affirmed nationwide—including in the commonwealth of Virginia. For women in Texas, Virginia, and across the country, I hope the Court recognizes these sham regulations as just that and rules to protect women’s access to abortion.