350z33 at English Wikipedia [CC BY-SA 3.0
or GFDL], via Wikimedia Commons
Gotta love Notorious RBG
by Tom Sullivan
350z33 at English Wikipedia [CC BY-SA 3.0
or GFDL], via Wikimedia Commons
The women on the U.S. Supreme Court had a bit of a field day when the Texas abortion case of Whole Woman’s Health v Hellerstedt came before the court yesterday. The 2013 Texas law at issue requires clinics offering abortion services to meet standards set for ambulatory surgical centers. In addition, it requires doctors performing those abortions to have admitting privileges at local hospitals. Hannah Levintova at Mother Jones sets the stage:
The Texas health department argues that these provisions are necessary to protect women's health—a standard that was established in 1992 in Casey as a legitimate reason for states to pass abortion restrictions. Casey also established, however, that the state's interest in women's health has to be weighed against whether an abortion law would place an "undue burden" on women seeking abortion care. This is where the plaintiff's argument lies. Whole Woman's Health, which runs three abortion clinics in Texas, argues that the burdens on women created by HB 2—clinic closures across the state that have forced thousands of women to travel hundreds of miles for abortion care—far outweigh any interest in protection of women's health that Texas has. They point to many medical groups, including the American Medical Association, that have said ambulatory surgical facilities and admitting-privileges requirements are not necessary to provide safe abortion care.
Dahliah Lithwick takes up the narrative as Chief Justice Roberts and Justice Sonia Sotomayor question Stephanie Toti who argued on behalf of the Texas clinics:
Roberts spends a good deal of Toti’s remaining time suggesting that the “undue burden” test after Casey has nothing to do with the state’s purpose in passing the law. Toti replies that the court looked carefully at the state’s intent when it assessed the abortion regulations in Casey. At around this point, Sotomayor decides that she has some things to say: “There’s two types of early abortion at play here. The medical abortion, that doesn't involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?” Toti explains that the woman has to take them at the abortion facility under Texas law.
Sotomayor is back: “I'm sorry. What? She has to come back two separate days to take them? ... When she could take it at home, it’s now she has to travel 200 miles or pay for a hotel to get those two days of treatment?”
Toti confirms that there is no reputable evidence that there is a medical benefit to having a medication abortion at “a multi-million-dollar surgical facility.”
Sotomayor asks for more time to finish her two-part question and the chief justice nods, resigned. Then Sotomayor asks why a dilation and curettage associated with a miscarriage can be performed in a doctor’s office whereas a basically identical D&C must be performed in an ambulatory surgical center when it’s for an abortion. Toti replies, and Sotomayor keeps talking. The chief thanks Toti but Sotomayor forges on, wondering if any other medical procedures require taking pills in a hospital. No, says Toti. Sotomayor is finally content to rest her case.
Justices Sotomayor and Elena Kagan observed that more risky procedures such as dental surgery and colonoscopies are not similarly regulated in Texas. They are routinely performed in a doctor's office.
Justice Ruth Bader Ginsberg might have had the most biting remarks of the hearing:
Seconds after Texas Solicitor General Scott Keller began to speak Wednesday morning, Justice Ruth Bader Ginsburg zeroed in on the “undue burden” question—quickly and mercilessly knocking Keller off balance and setting the tone for the rest of his nearly 40 minutes at the lectern. Ginsburg asked Keller how many women would live 100 miles or more from a clinic if the Texas law went into effect. About 25 percent, he responded—but that didn’t include the clinic in Santa Teresa, New Mexico, just over the border from El Paso. The existence of this clinic featured heavily in the 5th Circuit’s decision to uphold the Texas statute; it asserted that the law did not impose on “undue burden” on abortion-seeking El Paso women, because they could simply cross state lines for the procedure.
“That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.
“So if your argument is right,” Ginsburg continued, “then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.”
“Well,” Ginsburg concluded, with just a hint of pique in her voice, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”
You gotta love Notorious RBG.
With this season's conservative Sturm und Drang over the supposed scourge of political correctness, you'd think the purveyors of this and similar laws would simply drop the subterfuge, cut the crap, and boldly state for the cameras that these laws are cynical attempts to kill off Roe by a thousand cuts. But no, that would take honesty and guts.