Ever since Wendy Davis took to the floor of the Texas Senate for an 11-hour filibuster on June 25, 2013 in protest of bill HB 2, a TRAP law that would effectively shut down nearly every abortion provider in the state, reproductive justice advocates have been holding their breath. Well, first they stormed the Texas state capitol building in orange shirts which read, “Stand with Texas Women.” But Texas lawmakers didn’t want to hear what women wanted for their own bodies. Despite the efforts of thousands of women and Davis, the bill went on to be signed into law. And that’s when the courts entered the fray as activists on both sides of the debate argued their case all the way to the Supreme Court of the United States.
Now, almost exactly to the day of Davis’ historic filibuster, SCOTUS has not only validated the will of thousands of Texas women, but in its 5-3 decision, it has effectively killed TRAP laws forever.
As my friend Stacey Burns, of Rewire News, tweeted this morning, “I’m crying tears of joy.”
It’s a big deal and a decision that many of us in the reproductive justice community hoped for but worried would not come. With hundreds of anti-choice bills proposed at the state and federal level every year and a SCOTUS seat open, these are uncertain times. Still, Justice Stephen Breyer’s majority opinion gives me hope that perhaps my own daughter will not have to put up with this shit.
HB 2, and the litigation strategy used to defend it, took advantage of an apparent contradiction in the Court’s abortion jurisprudence. Roe itself held that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” More recently, in 2007’s Gonzales v. Carhart, a 5-4 Court held that lawmakers enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The question in Whole Woman’s Health was whether a state could enact a sham health law that did little to advance women’s health and a great deal to shut down abortion clinics, and then claim that enough “medical and scientific uncertainty” exists to permit such a law to stand.
Justice Breyer answers this question with a firm, unambigious “no.” Quoting from the Court’s 1992 opinion in
Planned Parenthood v. Casey, Breyer writes that “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,” and therefore are unconstitutional.”
At issue in this case, as well as in the more than two dozen states with similar laws, is whether or not those laws place an undue burden on medical providers and obstacles to women. TRAP laws, also known as Targeted Regulation of Abortion Providers, have been used as a legislative tactic to shut down abortion clinics all over the country. A key component of TRAP laws is to require abortion clinics to have be built to the level of ambulatory surgical centers (aka hospitals) and that abortion providers have surgical admitting privileges at hospitals — both of which require significantly higher costs, expensive and unnecessary upgrades to facilities, and requirements on doctors that are all but impossible to meet based on their field of expertise. Abortions are out-patient procedures and as SCOTUS testimony revealed, there are providers who have performed tens of thousands of these procedures without ever needing to utilize hospital facilities.
This is perhaps best illustrated in this particular case. As Justice Stephen Breyer wrote:
“[D]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” App. 730. In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.”
He went on to discredit the need for abortion facilities to be upgraded to surgical center standards as both unnecessarily cost-prohibitive, but also having the intended effect of closing clinics and thus creating more obstacles for female patients seeking care. In effect, Breyer’s opinion nullifies every argument for any component of TRAP laws. This is big news not only for Texas, but any state with TRAP laws in effect, such as Arizona, Utah, and a proposed bill in Colorado.
Like I said, there are still hundreds of anti-choice laws proposed every single year. Nothing is set in stone. And we must recognize and celebrate the very hard work that so many put into this fight. I am hopeful that this is a sign that the kind of anti-science rhetoric that allows these idiotic bills to proliferate is coming to an end. Unfortunately, we’re not done just yet. When it comes to reproductive rights, the only way we win is to remain ever vigilant.