Editorials, Op-Ed Urge Supreme Court To Protect Abortion Rights in Challenge to HB 2

November 16, 2015 — Editorials from The Atlantic and the New York Times and an opinion piece from the Austin American-Statesman respond to the Supreme Court's Friday decision to hear Whole Women's Health v. Cole. The case challenges HB 2, a Texas law that places onerous restrictions on abortion clinics. Summaries of the pieces appear below.

~ Garrett Epps, The Atlantic: The Supreme Court could strike down or uphold the Texas antiabortion-rights law without overruling its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which held that state could impose restrictions on abortion so long as they did not impose an "undue burden" on a woman's right to the procedure -- because "no one knows what the 'undue burden' means," Epps writes. According to Epps, the Texas law "impose[s] two new requirements on abortion facilities: First, doctors performing abortions must have 'admitting privileges' at a hospital within 30 miles of the clinic, and, second, clinics must meet all the requirements for 'ambulatory surgical centers.'" He explains that while a district court "concluded that neither requirement was actually aimed at providing better health outcomes for patients," the 5th U.S. Circuit Court of Appeals "reversed," holding that "all that mattered was that the restrictions had something to do with health, and that the state said the requirements were aimed at promoting health." Noting that Casey "originally said that the law has to serve 'a valid purpose, one not designed to strike at the right itself,'" he writes that if the Supreme Court "holds that the Texas law is not an 'undue burden,' it will be hard not to conclude that 'valid purpose' no longer has any meaning." He explains, "As long as a state keeps a straight face, any kind of 'health' regulation may be affirmed; and more aggressive restrictions," such as 20-week abortion bans, "may also pass the 'test.'" Alternatively, the high court "may enunciate a new test," Epps notes, adding, "I count four justices who would with a 'rationale basis' test -- in essence, telling states that they can do pretty much whatever they want." Epps notes, "If any vestige of the right to choose remains as an actual right ... then the Texas law should be struck down" (Epps, The Atlantic, 11/15).

~ New York Times: "The fallacious rationale of [HB 2] is to protect women's health, but the law does nothing of the kind," the Times states, adding, "Its entire purpose -- like that of similar laws around the country -- is to end legal abortion services." According to the Times, "The Supreme Court faces two fundamental issues in this case. First, what does the 'right to choose' mean at this point?" Citing the undue burden standard, the editorial states, "By any measure, the Texas law violates those principles. Already, more than half of the 41 clinics in Texas have closed, and if the law stands, at most 10 will remain open." Further, the editorial notes, "The justices also have the opportunity to make clear that courts cannot, as the Fifth Circuit did, simply uphold clearly deceptive legislation without questioning its actual function." According to the editorial, if the high court upholds HB 2, "the raft of laws around the country designed to limit access to abortion -- from [mandatory delays] to two-visit requirements to forced ultrasounds -- will make it ever more difficult for women to make their own reproductive choices." Noting that these restrictions "will fall heavily on the most vulnerable," the editorial concludes, "The question for the court is whether abortion will remain a safe and legal choice for all women, as the court has mandated under the Constitution for more than four decades" (New York Times, 11/13).

~ Ana Rodriguez Defrates, Austin American-Statesman: Defrates, a state policy and advocacy director at the National Latina Institute for Reproductive Health, writes that HB 2 would "have far-reaching implications, not only for the 40 percent of Texas women who are Latina, but for millions of women in this country for whom abortion is harder and harder to get." Noting how the law would multiply the "complications involved in getting an abortion," Defrates writes, "the greatest harm of this law," if upheld, "will fall on the state's Latinas and other women of color, immigrant women, and low-income families, who are already hurting from funding cuts and other barriers to health care." This "politically motivated attack" is "particularly harmful for Latinas," who "are twice as likely to experience unintended pregnancies as non-Latina white women and more likely to be of reproductive age," she adds. Further, she notes that the 2011 cuts to the state's family planning services mean that "Latinas are among the most likely to rely on the very clinics these laws were designed to shut down." According to Defrates, "A good decision means the [high] court will side with the majority of Latino voters in Texas, who overwhelmingly reject political interference in women's decisions about abortion," while "a bad decision means that other states are free to follow Texas' terrible lead and pass even more laws to place abortion out of reach" (Defrates, Austin American-Statesman, 11/13).