Abortion is one of, if not the most, divisive issue in American politics today. Continued attempts at restrictions at the state level have created the new situation the U.S. Supreme Court will face this term. A 5th Circuit ruling in the case “Whole Women’s Health v. Cole” created the need to have the case heard in the highest court of the land.
This case could have far-reaching implications, arguably as large as any case related to abortion since the creation of abortion as a fundamental right under the Constitution in Roe v. Wade in 1973.
Oral arguments will likely be held next year, and a decision could be heard by June 2016, according to Warren Richey of the Christian Science Monitor.
On the line this time is the “undue burden test,” a precedent set forth in in the case “Planned Parenthood of Southeastern Pennsylvania v. Casey” (1992). To understand how the concept applies is well… not plausible. The idea of it is simple enough, but its application as it applies to state laws varies greatly across the United States. In essence, laws that are ruled by a court to place an undue burden on the rights of a person can be ruled constitutional. There are, of course, many ways this test can be applied.
Now, the court takes up the Cole case and will grapple with whether a Texas law that aims to reduce the number of abortion providers in the state presents an undue burden to women trying to get an abortion. Should the court uphold the Texas law, the number of abortion providers in the state of Texas will drop from 40 to either nine or 10.
The law has two aspects that are of particular interest in this case.
“First, it requires that all doctors who perform abortions have admitting privileges at a hospital within 30 miles of where the abortion takes place,” Nina Totenberg reported for NPR. “Second, the law requires that abortion clinics be retrofitted to meet elaborate statutory hospital-grade standards, including wide corridors, large rooms and other expensive construction and equipment standards that do not apply to all other outpatient facilities where other surgical procedures like liposuction and colonoscopies take place.”
It is well established within case law that an undue burden must not be placed in front of the right to get an abortion, so states like Texas are instead creating ways to make it harder for medical professionals to provide them.
As is alluded to in this report from the Pew Research Center, the court has been more permissive of state restrictions geared toward abortion since Roe v. Wade. Such decisions permitted states to enact new laws that could impose an undue burden to women seeking care. This all was mostly before Webster v. Reproductive Health Services, which created what many abortion providers would call a hostile new precedent that allowed for the erection of drastic new barriers to accessing abortion as a resource.
On another hand, a case settled in 2000 titled Stenberg v. Carhart redefined “undue burden,” allowing doctors to not conduct abortions if they believe their decision to be the best for a woman’s long-term health.
The strategy involved here is none too dissimilar from how other states have chosen to restrict access to reproductive health care and access to resources. In Ohio, state legislators have worked through less visible means to inhibit the ability of qualified medical professionals to carry out the procedure. For example, the state has worked through the methods in the state budget and through convoluted “transfer agreements” (where abortion providers must have an agreement with a local private hospital to provide such procedures) to create an environment hostile to women seeking to access care. But Ohio is far from the only state to employ roundabout methods to restrict access to abortions.
With the makeup of this Supreme Court decidedly liberal or conservative in basically every seat but one (looking at you Kennedy), it’s highly likely that this case comes down to a split vote with a difference of one or two. The decision will have huge implications for states around the nation and what barriers can be put up in front of access to abortions.
As constitutional scholar Garrett Epps writes for The Atlantic: “I count four justices who would (create a new test) with a ‘rational basis’ test—in essence, telling states that they can do pretty much whatever they want. That sort of plain speaking, though, is not congenial to Justice Anthony Kennedy, who joined the Casey ‘undue burden’ test but who also wrote the later opinion proclaiming that women must be protected from themselves.”
A new test would create a new set of hurdles in front of the ability to access or perform abortions. Only time will tell what this hugely influential judicial battle will produce, and the impact of how women seeking abortions could ultimately be subject to the whim of legislators in their respective states.
Here are three pieces of media worth reading to get a better grasp of the implications of this important case.
- Pew Research Center puts together (up to date as of 2013) a list of cases at the Supreme Court level that pertain to abortion.
- Respected Supreme Court reporter Nina Totenberg of NPR explains the basics of what’s happening with SCOTUS taking up Whole Women’s Health v. Cole.
- RH Reality Check writer Jessica Mason Pielko suggested that the court’s decision to hear Whole Women’s Health sends mixed messages.