The first abortion case to reach the US Supreme Court in nearly a decade stands to impact the fate of most clinics in Texas—and possibly clinics in states with similar restrictions that have led to years of record closures.
Opening arguments begin Wednesday for Whole Woman’s Health v. Hellerstedt, a challenge to a 2013 Texas law requiring clinics to adhere to stricter medical standards. It passed the same year as Dr. Kermit Gosnell’s life sentence for grisly practices uncovered at his Philadelphia office.
“The central purpose of the law in Texas and other states is to protect the health of women, and pro-lifers should see that as critical,” said Clarke Forsythe, senior counsel at Americans United for Life.
The case reflects recent shifts in pro-life activism, including a greater emphasis onwomen’s voices, leadership, and wellbeing. While abortion opponents remain concerned with the life of the unborn baby, they also highlight the physical and emotional risks posed to its mother. The women rising in the pro-life movement since the ‘90s “actually believed pretty deeply that abortion hurts women,” law professor Mary Ziegler told The Washington Post for its examination of how the nation’s highest court will test this new strategy.
Texas’s law insists that doctors performing abortions have patient-admitting privileges for nearby hospitals in case of emergencies, as well as that the facilities meet the same building codes as other outpatient surgical clinics. These requirements proved too costly or logistically impossible for all but 8 of the Lone Star State’s 40 clinics, about half of which have closed already, Reuters reports.
In the past five years, more than 150 US abortion providers shut down; America’s abortion rate dropped to its lowest since Roe v. Wade, and in both the most pro-choice and most pro-life states; and states passed more than 300 new restrictions on abortions. Bloomberg notes that five states have just one abortion clinic left. This dramatic pro-life wave followed the Supreme Court’s decision to uphold a partial-birth abortion ban in 2007, the last time it ruled on the issue.
That Gonzales v. Carhart ruling paved the way for states to propose abortion restrictions of their own without much concern that they would be struck down by the court, said Forsythe. A decision in favor of Texas would send a similar message; clinics in Louisiana are pushing to wait to see what the justices say before their state enacts its own version of the Texas law. Across the country, 8 other states have introduced similar restrictions, and 23 states signed a brief sent to the Supreme Court in support of the regulations.
This case will be one of the first high-profile issues to be heard following the death of Justice Antonin Scalia last month, which leaves an even number on the court. The most likely outcome—a 4–4 tie—would defer to the lower court’s ruling in favor of Texas, “but it would not send a nationwide signal” about abortion policy, Forsythe said.
Justice Anthony Kennedy is left as the deciding vote. The New York Times reportsthat the case has amassed hundreds of personal abortion testimonies filed within supporting briefs, including personal stories from lawyers who say their abortions changed the course of their lives for the better, and a statement signed by thousands of women who say they suffered decades of “trauma and emotional injury” as a result.
Pro-choice activists, along with medical professionals including the American Medical Association and the American College of Obstetricians and Gynecologists, have sided against the Texas law. They state that abortion is consistently a safe and complication-free procedure; therefore, state regulations are really efforts to force these providers to close—placing an “undue burden” on women seeking abortions.
“We shouldn’t be surprised that the abortion rights lobby fights legislation that creates accountability for surgeons and clinics. The abortion industry has always operated at the expense of women and families,” said Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission. “My prayer is that the Supreme Court will act in defense of the lives of women and the unborn in empowering states to cut through the political armor of the abortion industry.”
Presidential candidates Ted Cruz and Marco Rubio signed onto the congressional brief filed on behalf of the Texas law, and both have released statements in support.