A woman has the right to determine when and whether she will bear a child. That right – first established by the U.S. Supreme Court in Roe v. Wade in 1973 – was reaffirmed on Monday when the court struck down a law that placed obstacles in front of Texas women who wanted to get an abortion.
The 5-3 decision in Whole Woman’s Health v. Hellerstedt stems from a 2013 law that set specific “safety” requirements on abortion providers. Similar requirements were not required for other out-patient procedures that, statistically, are more dangerous. Doctors performing abortions were required to have admitting privileges at a nearby hospital, and clinics had to be enlarged and staffed as if they were surgical centers.
Since the restrictions were adopted – and upheld by a federal appellate court – the number of abortion clinics in Texas fell from 40 to 18, The Dallas Morning News reported. The remaining clinics are providing many more abortions. Some women, noted the newspaper, live 350 miles from the nearest clinic.
“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,” Justice Stephen Breyer, 77, wrote for the majority.
Breyer’s decision echoed a 1992 decision written by Justice Anthony Kennedy, 79, that said a state, lacking a compelling need, cannot place substantial obstacles in the path of a woman’s right to choose.
Texas argued the regulations were necessary to protect women’s health. But justices noted childbirth is 14 times more likely than abortion to result in death, though Texas law allows a midwife (with no admitting privileges) to oversee childbirth in the patient’s home. The justices also cited a California study that found only 15 of 54,911 abortion patients required transfer to a hospital on the day of the abortion.
In a concurring opinion, Justice Ruth Bader Ginsburg, 83, wrote that so long as the court adheres to Roe v. Wade, laws designed to “strew impediments to abortion ... cannot survive judicial inspection.”
And there are now many such laws. Since the Texas law was first upheld by the appellate court, restrictive laws have become common. From 2011 to 2015, the Guttmacher Institute says 31 states adopted 288 laws and regulations restricting abortions. Kansas has 30 restrictions; Arkansas and Oklahoma have 22, Indiana 20, Arizona 18.
Many of those laws, say legal scholars, became invalid ... for now.
This remains an enormously divisive issue. Justice Clarence Thomas wrote in dissent: “I remain fundamentally opposed to the court’s abortion jurisprudence” – a signal he is willing to throw out Roe v. Wade entirely.
Which brings us to the 2016 presidential election. Three justices among the five-vote majority are ages 77, 79 and 83; the next president could be required to replace one if not all three. For those choosing their presidential candidate on this issue alone, the choice is clear: Hillary Clinton praised Monday’s decision; Donald Trump has promised to appoint only “anti-abortion” justices.