I know Super Tuesday just happened, and we all want to talk about how well Donald Drumpf is doing, and Clinton's impressive victory, and Sanders' win in Colorado, but right now I want to talk about something more important.
On Wednesday, the Supreme Court heard oral arguments in Whole Woman's Health v. Hellerstedt, which is challenging a Texas law that, if it goes into effect, would close clinics across the state. The law would require abortion providers to have admitting privileges at a hospital no more than thirty miles away, and mandate that clinics meet the standards of an ambulatory surgical center.
In Texas, the requirements for an ambulatory surgical center are extensive. Clinics would need to buy new equipment, and sometimes change the design of their clinics, to meet the requirements to be a licensed ambulatory surgical center. All these requirements for a procedure that's far safer than pregnancy.
According to one study, 1 in 11,000 women in the United States died in childbirth between 2005 and 2008, but we don't force women to have children in ambulatory surgical centers. By contrast, only 1 in 167,000 women died from complications from abortion between 2005 and 2008, so if politicians really wanted to protect women's health, they would focus on the dangerous act of giving birth to a child.
The legal question before the court is whether or not these laws, like HB2, place an "undue burden" on women seeking an abortion. HB2 has already closed clinics in Texas. 20 closed after abortion clinics were required to have admitting privileges at nearby hospitals, because nearby hospitals wouldn't give the clinics those privileges. Another 10 could close if the ambulatory surgical center portion of the law was to be upheld, leaving only 10 clinics open.
Some women in Texas already have to drive over 125 miles to reach an abortion clinic. Should the last clinic in West Texas close, women will have to choose between driving 500 miles to another clinic in Texas or crossing state lines to go to a clinic in New Mexico (the biggest of shout-outs to Southwestern Women's Options). Either women face the burden of a 500 mile trip, or another state is forced to provide healthcare for people who do not pay taxes in that state. With HB2, Texas is placing a burden on both its citizens and on neighboring states that have their own residents to look after.
With an eight person court, this case could play out in one of several ways. It's highly unlikely that Justices Ginsberg, Breyer, Sotomayor and Kagan will flip and vote with the Republicans, so either Kennedy will vote with the four liberal justices to strike down these medically unnecessary regulations, or there will be a tie.
As I mentioned in a previous blog post, a tie means the lower court decision would be upheld. In this case, the lower court voted to keep the laws in place, so a tie could mean that clinics in Texas are forced to close. However, the justices can also choose to hold the case over until the next term, when a new justice is on the court.
There's precedent for holding a case over to the next term when the court has fewer than 9 people. In fact, Roe v. Wade was first argued in 1972, for a court with 7 justices, but the case was postponed until a full court could rule on the important case. As with many of the landmark decisions in recent years, it appears that this will come down to Justice Kennedy, so if anyone sees him in the next couple of days, feel free to share the knowledge you just learned about the safety of abortion, and the medically unnecessary regulations currently in place.