By Elana Margosis
United States and Virginia women won a decisive victory in last month’s Supreme Court 5-3 ruling in Whole Women’s Health v. Hellerstedt, which ruled that two Texas restrictions on abortion were unconstitutional and presented an undue burden. The ruling on the restrictions comes from a single law in Texas, but has far-reaching positive implications on policy, healthcare, and women nationwide that we are only just beginning to see.
To understand the case better, it helps to look at previous Supreme Court rulings. After abortion was legalized in 1973 by landmark case Roe v. Wade, state lawmakers quickly began adding restrictions to abortion, and in 1992, the Supreme Court took up Planned Parenthood v. Casey, a case from Pennsylvania that challenged the constitutionality of some of these restrictions. While most of the law stood, the Court ruled that states could not impose an “undue burden” on the right to choose. However, what exactly constituted an undue burden was less than clear and the vagueness of the ruling was subsequently exploited by opponents of safe and legal abortion.
The restrictions in question were part of the 2013 law famously filibustered by then-Texas senator Wendy Davis. The first was a set of requirements that mandated that abortion clinics follow standards inappropriately stringent for the type and safety of procedure performed, despite respected medical groups, including the American Medical Association and the American College of Obstetricians and Gynecologists, having testified that standards like these do not actually improve patient health. The second restriction was a requirement mandating that doctors must have admitting privileges at a hospital within a certain radius, which proved to be often impossible for a variety of reasons. Many hospitals required physicians to admit a certain number of patients annually, a bar abortion providers could not meet due to an extremely low rate of abortion-related complications. Some hospitals would not grant admitting privileges due to religious objections, and others simply did not want to be seen as taking a political stance.
As a result, 75 percent of the clinics in Texas closed, leaving less than ten clinics across the state, most concentrated in urban areas in the east. Waiting times for appointments skyrocketed, sometimes even pushing women outside of the legal timeframe to have an abortion. Many Texans found themselves hundreds of miles from the nearest clinic, and had to take time off work and secure days of childcare if they already had children, in order to travel, wait the 24 hours required by Texas law, and finally have the procedure itself. These barriers to access, among many more, disproportionately affected low-income Texans.
The clinic closures had a significant effect on women seeking abortion: in 2015, the Texas Policy Evaluation Project reported that up to 240,000 Texas women had attempted to self-induce an abortion, and cautioned that the new law could lead to increased attempts at self-induced abortion.
These laws are far from unique to Texas. Virginia, which earned a grade of “F” from NARAL Pro-Choice America in 2016, has some of the most restrictive laws in the country governing the clinics that provide abortion. Here, clinics must conform to many blatantly unnecessary requirements that would be laughable if they didn’t result in clinics closing due to the financial stress of renovations. Virginia law specifies the type of fabric that must be used on window coverings, the widths of hallways, the ceiling heights in the boiler room, and even the number of parking spaces at the clinic.
Laws like the ones in Virginia and Texas are implemented to score political points with anti-choice activists, not to actually improve women’s health or the safety of abortion procedures, which, the majority opinion in Whole Women’s Health v. Hellerstedt notes, are less risky than tonsillectomies, colonoscopies, and in-office dental surgery. There is no reason for abortion to be regulated differently from any other legal medical procedure.
Fortunately, there are indications that the tide has started to turn nationwide following the case, including in Virginia. Alabama’s attorney general recently declared the state would no longer attempt to appeal a block on the state’s admitting-privilege law, and the Supreme Court declined to review cases from Wisconsin and Mississippi, thus upholding lower courts’ bars on admitting-privilege laws in those states. And Planned Parenthood recently added Virginia to a list of states with laws it plans to challenge in court. While the organization has not yet specified which laws it will target, removing any of the Commonwealth’s unnecessarily restrictive laws will be an improvement from the current legal landscape.
Removing medically unnecessary laws from the books is only the first step to ensuring women and families have the ability to fully control their reproductive destinies. But the Supreme Court’s ruling and the case’s earliest preliminary effects are a victory, and reason for hope for Virginia women and families.