I spent the last half-hour before the Supreme Court’s decision was announced in Whole Woman’s Health v. Hellerstedt on a Google Hangout with independent abortion providers from the Abortion Care Network. It was a pretty anxious wait, with lots of nervous joking and obsessive checking of SCOTUSblog. When the news came down, believe me, I wasn’t the only one with tears of relief, joy, and astonishment in my eyes. We won! We won 5–3! And the cream of it was, even if Antonin Scalia had been on the bench, we still would have won. After so many years on the defensive—so many disappointments, so much frustration, and so many losses—pro-choicers finally have something big to celebrate.
It is hard to overstate what this victory means to the people who have run the clinics and provided the care, despite being forced to practice medicine in ever more constricted ways—ways that have nothing to do with providing safe, compassionate, state-of-the-art health care. Partly thanks to State Senator Wendy Davis’s famous filibuster, HB2—the 2013 Texas law that the Court struck down—came under a lot of scrutiny. In the name of protecting women’s safety, the law required clinics to meet the same standards as small hospitals, at a prohibitive cost, and clinic doctors to have admitting privileges at nearby hospitals, which refused to grant them. Over half the abortion clinics in Texas were forced to close; had HB2 been upheld only nine or ten would have remained. But HB2 was only one of at least 288 restrictive abortion laws passed in the United States since 2010, many of which had the same bogus women-friendly rationale, but which were really intended to make trouble for both patient and clinic. Four visits for a patient to take the abortion pill, which is perfectly safe to take at home? The same doctor who performs the abortion has to meet with you days earlier to read you “information” about how abortion causes breast cancer? As clinics closed—one in four independent clinics in the past five years, and not all of them in red states, by the way—the burdens on the remaining ones increased. This forced some women into long, expensive journeys and pushed others to postpone their abortions into the second trimester, when the procedure is both more expensive and more complicated.
Justice Stephen Breyer’s dry and careful opinion refuted the argument that HB2’s restrictions protect women’s health just because the Texas state legislature says so: “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.” Breyer pointed out that colonoscopies and vasectomies are both more dangerous than abortion, and that while childbirth is 14 times more likely to end in the woman’s death (to say nothing of serious injury) than abortion, “Texas law allows a midwife to oversee childbirth in the patient’s own home.” Justice Ruth Bader Ginsburg’s concurring opinion added the necessary touch of exasperation: “It is beyond rational belief that HB2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions.”