Reproductive Rights Advocates Hopeful Supreme Court Will Overturn Restrictive Texas Abortion Law

Posted March 9, 2016

MP3 Interview with Gretchen Borchelt, vice president of reproductive rights and health of the National Women's Law Center, conducted by Melinda Tuhus

abortion

The Texas law passed in 2013 that has severely restricted women’s access to abortion was appealed and reached the Supreme Court this term, where both sides argued their case on March 2. The law required doctors performing abortions to be given admitting privileges at local hospitals and required abortion clinics to meet the standards of ambulatory surgical centers. Similar laws have passed in many other states. Supporters of these laws maintain that they were implemented to protect women's health. But women's health providers and advocates say such laws have had the opposite effect by denying women constitutionally protected health care. The high court’s ruling in the Whole Woman’s Health v. Hellerstedt case could come any time up through the end of the Court's term this June.

In 2012, Texas had 41 abortion clinics open, serving most of the state. Now Texas has only 19 operating clinics, and that number would be reduced to 9 if the restrictive abortion law takes effect. By implementing these so-called Targeted Regulation Of Abortion Providers or TRAP laws, Republican governors and legislatures across the U.S. have succeeded in eroding abortion rights over the past several years.

Between The Lines’ Melinda Tuhus spoke with Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center. Here, she explains why this case is considered the most important for reproductive health in a generation – and what ruling she expects from the Supreme Court after it lost its most conservative member, Antonin Scalia, died in February.

GRETCHEN BORCHELT: The question that’s at issue in this case, that’s before the Court right now, is how far states can go in their attempts to make it difficult or even impossible for women to exercise that constitutional right to abortion. We know for over 40 years the Supreme Court has made it clear that women have a Constitutionally protected right to decide whether to entertain an abortion. The last major case was on that decision was in 1992: Planned Parenthood versus Casey. And the Supreme Court said states can’t pass laws that impose an undue burden on that right. Since that decision in 1992, we’ve seen state lawmakers try to make an end run around those protections and advance laws that are really meant to shut down clinics and make it impossible for women to get the essential reproductive health care they need. And that’s what’s at stake here: What is that standard that the Court put in place in 1992? The undue burden: What does that mean for women? What constitutes an undue burden? This is really the Court’s first major wrestling with that question since it set the standard into place.

BETWEEN THE LINES: The Supreme Court just issued a stay against the enforcement of a similar law in Louisiana, which would have reduced the number of abortion facilities in the state from four to just one. I guess that’s at least a temporary victory for women.

GRETCHEN BORCHELT: So, in Louisiana they passed a requirement for admitting privileges, which is one of the restrictions at issue in the Texas case. And the Supreme Court stepped in to hold that law so that it doesn’t go into effect. If that law had gone into effect in Louisiana, it would have left that state with one abortion clinic, so one clinic for the entire state of Louisiana. So the Supreme Court stepped in and said, we’re going to hold that law. It won’t go into effect while these other lawsuits proceed. So it’s certainly a victory for women in Louisiana. It doesn’t tell us much about the way they’ll come out in Texas, necessarily, because those kinds of stay orders don’t have an entire written decision; you don’t really know what the justices are thinking. But it shows that these kinds of restrictions are passing across the country; it’s not just in Texas. We’ve seen them in Louisiana, in Mississippi, in Wisconsin. Across the country, these state lawmakers are quietly passing these abortion restrictions. There have been 288 abortion restrictions passed in the last five years. And a lot of them are closing clinics, and they’re aimed at closing clinics. But other ones are just bad for women – trying to prevent women from getting an abortion, lying to women, delaying women, making abortion cost more than it should – these kinds of restrictions are passing and we really need the Supreme Court to step in here and put an end to it.

BETWEEN THE LINES: We talked about this a couple of years ago, when the Texas law was first passed. The biggest difference now is that there are eight members on the Supreme Court instead of nine. Justice Antonin Scalia, who died recently, would clearly have been on the side of the Texas law in further restricting abortion rights. So now, with Justice Anthony Kennedy always seeming to be the swing vote, it looks like it will either be a 4-4 tie or the justices will come down against the Texas law. Can you elaborate on those two scenarios?

GRETCHEN BORCHELT: Sure. I mean, first of all, I want to say we’re confident that the Supreme Court is going to strike down these laws. As I said, it’s long been the case that the Supreme Court has affirmed that the U.S. Constitution protects a woman’s right to abortion, and they have this undue burden standard. And given what is happening in Texas, with all these clinics shutting down, women being forced to travel 500 miles to get an abortion, not being able to access abortion at all; it’s clear that this is an undue burden, so we’re confident in a 5-3 decision. Even with the absence of Justice Scalia, I think we have a victory here. If the court were to tie with a 4-4 decision, that would mean that the lower court’s decision would stand, which in Texas is a terrible decision. Clinics would close; women would lose their ability to access abortion in this country. I don’t think that that’s a result that the Court can really approve of. And it also would mean that these other cases that are pending, like in Louisiana, like in Mississippi, would still be working their way up to the Court, and the Court is going to have to resolve this question once and for all, eventually.

BETWEEN THE LINES: I was looking at data from the Guttmacher Institute about abortion trends. From 1973 to 2011, which was the most recent year for data, abortions hit a high of 1.6 million nationally in 1988 and there's been significant drop between 2008 and 2011, which the Institute attributes to what it calls a "steep drop in unintended pregnancy, which in turn is most plausibly explained by more and better contraceptive use," and not to all the anti-abortion laws being passed which mostly went into effect after 2011. But access to birth control is also under assault, isn't it?

GRETCHEN BORCHELT: This isn’t the only case about reproductive health that’s before the Court this term. There’s another case that the Supreme Court is reviewing that’s about access to birth control, and whether employers can step in and prevent women from accessing birth control. We’re seeing these kinds of efforts to interfere in a woman’s decision making, whether it’s abortion or birth control, by third parties who should not be involved. Politicians shouldn’t have a role in deciding whether women can access abortion, and your boss shouldn’t have a role in deciding whether or not you use birth control. So, again, we’re confident that the Supreme Court is going to step forward in both these cases and put an end to interference in women’s decision making.

Learn more about the Texas anti-abortion law and the groups working to protect a woman’s reproductive rights by visiting nwlc.org.

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