Whole Woman’s Health v. Hellerstedt is a test for the Supreme Court. Can the justices see through Texas’ anti-abortion charade?

Will the Supreme Court See Through Texas’ Anti-Abortion Charade?

Will the Supreme Court See Through Texas’ Anti-Abortion Charade?

The law, lawyers, and the court.
March 1 2016 7:23 PM

Texas’ Big Lie

The laws it insists protect women’s health are actually anti-abortion. Will the Supreme Court see through the charade?

Pro-choice activists.
Pro-choice activists participate in a rally outside the U.S. Supreme Court, Jan. 22, 2016, in Washington, D.C.

Alex Wong/Getty Images

There is only one story the defenders of Texas’ women’s health clinics will tell the Supreme Court this week in Whole Woman’s Health v. Hellerstedtthe first landmark abortion case the court has heard in nine years. Here’s that story: The state of Texas passed a law in 2013 called HB 2 that will, if it is upheld, allow approximately 30 of the 40 abortion clinics that operated in that state to be shuttered. If that is allowed to happen, Texas will have only about 10 clinics left to provide abortion and other reproductive health services to the 5.4 million women in that state of childbearing age.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

As so many of the amicus briefs before the court attest, the two so-called TRAP, or targeted regulation of abortion providers, laws at issue—one requiring clinics to retrofit themselves as ambulatory outpatient surgical centers, the other demanding that every doctor who performs abortions be granted admitting privileges at hospitals within 30 miles of a clinic—purport to protect women’s health. They don’t. Indeed, there is virtually no doubt that closing clinics en masse will lead to terrible health outcomes for Texas women. Neither reform is necessary, but both are so burdensome that clinics will have to shut their doors. Tens of thousands of women across the state will thus lose access to clinics. They will not have safer, cleaner clinics. They will simply have none.

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Technically, when they tell this story to the high court, the clinics need only explain that the closing of 75 percent of the state’s clinics creates an unconstitutional “undue burden”—a burden on the women who must, in many cases, drive 150 miles in each direction to access abortion services, and that leaves others to attempt the dangerous, life-threatening task of terminating their own pregnancies. The 1992 Planned Parenthood v. Casey decision that upheld the right to abortion was clear on this one point: “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

Not surprisingly, if Texas’ HB 2 is allowed to stand, the burden will fall hardest on Texas’ poor, rural, and minority women, who will face delays in obtaining appointments and who may not have access to time off, and fast cars, to travel across the state or to neighboring states (ones that don’t have the clinic protections Texas demands) for a constitutionally protected right to terminate a pregnancy.

The state of Texas, on the other hand, has two stories to tell. One they will tell the court with extra innocent Bambi eyes. The other is the one they’ll confess in private, or tweet about in a moment of weakness. The two stories cannot be reconciled.

The first is that HB 2 was passed exclusively to protect “the highest standard of health care” and to regulate evil abortionists like Kermit Gosnell out of existence. The goal of HB 2, that story goes, is to ensure that women who opt to have abortions are able to do so in safe, sanitary conditions and with options for emergency care as needed. This is the story the state of Texas offers up in its brief to the court in Hellerstedt.

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The problem here is that this story is obscured by a second tale, one that anyone looking at this case and the history of TRAP must reckon with. It’s the story of the concerted effort by anti-abortion groups, including Americans United for Life, to incrementally chip away at the core holding of Roe v. Wade  until, as Mary Ziegler of Florida State University has said, it “was so incoherent and so full of holes that courts would finally get rid of it.”

The strategic shift from fighting to overturn Roe to regulating women’s welfare has resulted in the enactment of 288 restrictions on abortion since 2011. Often these regulations are merely Easy-Bake Oven cookies enacted by pro-life groups and adopted wholesale in red states. They are, to be clear, enacted as part of a deliberate move to end abortion, while making it look like the state concern is maternal health.

What all that means is that the same state of Texas, while paying lip service to Supreme Court precedent and the need to avoid placing “undue burdens” in the path of a woman seeking to terminate a pregnancy, is also winking and crossing its fingers behind its back. The entire point of HB 2 was to generate undue burdens, and—as Linda Greenhouse notes this week—sometimes the mask slips, and the truth of that comes out. As Greenhouse explains, “After the bill, originally known as Senate Bill 5, or S.B. 5, cleared the State Senate, David Dewhurst, then the lieutenant governor, tweeted a map that opponents had circulated showing all the abortion clinics that would have to close. ‘We fought to pass S.B. 5 thru the Senate last night, & this is why!’ he exulted.”

Planned Parenthood Foundation of America president Cecile Richards, writing in the Washington Post, similarly points out that Texas Rep. Jodie Laubenberg likes to say out loud that Texas’s law is about “what is best for the health of the woman.” Yet Laubenberg also stated last year, “I am so proud that Texas always takes the lead in trying to turn back what started with Roe v. Wade.”

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And that’s the real problem here: that despite what you may have heard, this isn’t a case about if or how states can regulate abortion for maternal health and safety concerns. And this also isn’t a case about how many hurdles women can reasonably be expected to leap over in order to obtain an abortion. No, at its core, this is a case about how blatantly state legislators can fib about why it is they’re restricting women’s constitutional rights when colonoscopies and carrying a pregnancy to term are vastly more dangerous. The real case is about whether they can pretend to do one thing while doing another and still have the Supreme Court go along with the puppet show.

Opponents of abortion may reasonably come to the court and say that they want to outlaw it because it offends them, they see it as loathsome baby-killing, and they view every women’s health clinic as a filthy abortion mill. But they should not be able to flash their big anime doe eyes up toward the bench and say they are merely concerned about maternal health, simply because that’s the best way to win.

The 5th U.S. Circuit Court of Appeals fell hook, line, and sinker for the state’s anime doe eyes. That court determined not merely that they were OK with the state legislature’s pretextual reasoning about protecting maternal health but also that it was wildly inappropriate for courts to look at the vast mismatch between asserted goals and outcomes and between the empirical data and the impact of a proposed law. Instead, the 5th Circuit panel turned its own big Maybellined anime doe eyes up to Justice Anthony Kennedy and suggested that it is not a court’s job to second-guess legislatures.

There have been 10,000 pieces filed this week suggesting that Kennedy’s vote will be crucial in the Hellerstedt decision. Oddly, it may actually matter to Kennedy that his own directive in Casey—that courts look carefully to see when a legislative burden is a speed bump and when it’s a brick wall—has been subverted here. Texas has erected a brick wall, then winked and hollered, “Hey look! A speed bump!”

It may also matter to Kennedy that an appeals court determined that all brick walls are now speed bumps so long as the state says so. And it may yet matter to him that tens of thousands of women will be denied vital health care by way of a winking, pretextual shell game. Women’s health will suffer as a result of Texas’ legislative doublespeak. That should not be played out as a game at all.