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In op-ed, Whole Woman's Health owner celebrates SCOTUS ruling, discusses lingering obstacles to abortion care

June 28, 2016 — "Every day at Whole Woman's Health, we treat our patients with compassion, respect and dignity -- and Monday the Supreme Court did the same by ruling 5-3 to strike down restrictions on Texas' abortion clinics," Amy Hagstrom Miller -- founder and CEO of Whole Woman's Health and lead plaintiff in Whole Woman's Health v. Hellerstedt -- writes in an opinion piece for Time.

Hagstrom Miller notes that while the ruling ends the three-year period in which Whole Woman's Health and abortion-rights advocates fought certain provisions in Texas' omnibus antiabortion-rights law (HB 2), "[i]t would be a mistake to treat the Supreme Court ruling as the end of a story, when in fact, if we are to keep our promise to women, it must be a beginning." She writes, "Too many obstacles still remain, obstacles we must dismantle if the legal right to an abortion can ever be a reality for all who may need it."

According to Hagstrom Miller, "The decision removes a major barrier to abortion access in Texas and sends a powerful message to many politicians across the country who have pushed similar policies that this kind of restriction will not stand." She adds, "Striking down HB 2 keeps clinics open in Texas and makes it more possible for a woman who has decided to end her pregnancy to get the care she needs."

However, Hagstrom Miller writes that the ruling does not "clear the path of the roadblocks and hurdles -- new and decades-old -- that still stand between women and safe, legal and compassionate abortion care," adding, "It is to those many barriers that we must now turn our collective strength."

She notes that while the fight against HB 2 began as a fight against "bad policy," it has since "become about so much more than one bad Texas law." Hagstrom Miller explains, "Our struggle to defeat HB 2 by taking our case to the highest court in the land calls the question of what kind of country we want to be, and more specifically, how we will treat a woman who has decided to end her pregnancy."

She points to abortion stigma, which "works to shame and blame women across all levels of human interaction: among family and friends; at work, school and church; in the media; and in the words and actions of politicians." According to Hagstrom Miller, "Laws like HB 2 are rooted in abortion stigma because they treat abortion providers and our patients with an absurdly high degree of surveillance and overregulation: forcing us to jump through hoops and comply with regulations that are medically unnecessary and financially debilitating." Moreover, "HB 2 and laws like it (on the books in 23 other states) are intended to create more stigma and frighten women who seek abortion care by making the procedure seem more daunting and complex than it actually is," she continues.

Hagstrom Miller writes, "We need to start talking more about abortion, and stop blaming and shaming women who have made this personal decision." She concludes, "We can decide to end the stigma, end the shame and create communities where we all can thrive; our words and deeds can make all the difference" (Hagstrom Miller, Time, 6/27).

Op-eds laud Whole Woman's Health decision

In related news, multiple opinion pieces praise the Supreme Court's decision in Whole Woman's Health vs. Hellerstedt. Summaries of selected commentaries appear below.

~ Linda Greenhouse, New York Times: "By holding [Texas'] asserted rationale for its clinic-decimating regulations up to the light and finding it specious and counterproductive, the [high] court has shut down one of abortion opponents' main recent strategies: enacting 'targeted regulation of abortion providers' laws that impose on doctors who perform abortions special restrictions not placed on doctors who do procedures of equal or greater risk," Greenhouse writes. She notes that in the majority opinion, Justice Stephen Breyer "show[ed], carefully and methodically, the 'virtual absence of any health benefit' from requiring doctors who provide abortions to obtain admitting privileges at local hospitals or requiring abortion clinics to retrofit themselves as mini-hospitals at huge cost." Greenhouse explains that this "absence of a health benefit matter[s]" because as implied in Planned Parenthood v. Casey and "made explicit [in Whole Woman's Health], a court confronting a state-devised obstacle to abortion has to balance the burden the law imposes against the benefit it provides." The benefit is not defined as the one "the state claims for it ... but the benefit the law actually conveys," Greenhouse continues, noting, "In the decision, Whole Woman's Health v. Hellerstedt, evidence-based medicine meets evidence-based law." She writes, "The Casey decision established the 'undue burden' standard for judging abortion laws, and the word 'undue' implies a comparison: undue as compared to what? The answer: An undue burden is one that outweighs a benefit." Noting that the decision establishes that "[s]ingling out abortion for regulation that can't be justified on medical grounds is unacceptable," Greenhouse concludes, "There's not much in Justice Breyer's opinion that's quotable. But there's not much that's debatable either, and that's what matters" (Greenhouse, New York Times, 6/27).

~ Linda Hirshman, Washington Post's "PostEverything": The Supreme Court's decision in Whole Woman's Health "seems to be the death knell for two decades of antiabortion activism, which has cloaked itself in unsupported assertions that women need to be protected against abortion rights," Hirshman writes. According to Hirshman, this strategy "reached its high water mark with [the Supreme Court's] hotly contested 5-4 decision upholding" certain abortion restrictions in Gonzales v. Carhart in 2007. She explains that in that opinion, Kennedy "found medical disagreement about the safety advantages of the procedure" and "then deferred to the findings of the legislature that women would be safer and better off without [access to the procedure]." In turn, conservative lawmakers "took Kennedy's majority opinion in Gonzales to mean" that "[a]s long as they found for themselves that they were helping women ... they were protected from the Constitution," Hirshman writes. However, she notes Justice Stephen Breyer in the majority opinion for Whole Woman's Health quoted from the 2007 opinion that the "Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake," thus "emphasiz[ing] that even Gonzales didn't say the court always had to defer to the legislature on factual matters." Nonetheless, Hirshman writes that Breyer "buttressed" the ruling "by noting that the Texas legislature hadn't even made any findings in the current law," a potentially problematic conclusion given that other laws similar to Texas' HB 2 include legislative findings. "That's where [Justice Ruth Bader] Ginsburg weighed in with one of her signature futuristic concurring opinions," Hirshman writes. She explains that Ginsburg dismissed Texas' claims about protecting women's health, citing "a laundry list of studies of how safe abortion is." Ginsburg concluded by writing that "'[s]o long as this Court adheres to Roe v. Wade ... and Planned Parenthood of Southeastern Pa. v. Casey," targeted regulation of abortion providers laws such as HB 2 that "do little or nothing for health, but rather strew impediments to abortion ... cannot survive judicial inspection." Ginsburg "is writing into law the factual finding that abortion is safe, full stop," Hirshman explains, concluding, "When the court turns to [a similar] Alabama law [HB 57], with its 'finding' that women need abortion to be restricted, she wants that future court to be able to cite to her opinion that they do not" (Hirshman, "PostEverything," Washington Post, 6/27).