U.S. Supreme Court Hears Pivotal Abortion Case: Women's Lives at Stake

March 7, 2016 | Revolution Newspaper | revcom.us


On March 2, the U.S. Supreme Court heard arguments in the most important abortion case in decades. How the court rules on this case will have life and death implications for millions of women, not just in Texas, but all over the country.

At issue in this case (Whole Woman’s Health v. Hellerstedt) is Texas law, House Bill 2 (HB2). Proponents of HB2 say it is about the health and safety of women. But this is a big LIE. This law has nothing to do with the protection of women. It will put women’s lives at risk. And in fact, HB2 was consciously designed to impose completely unnecessary restrictions on clinics in order to close them down and deny thousands of women the right to abortion. Shortly before HB2 was signed into law, Rick Perry who was governor of Texas then, spoke at an anti-abortion rally and said, “An ideal world is one without abortion. Until then, we will continue to pass laws to ensure that they are rare as possible.” And in July 2015, HB2 author, Texas State Representative, Jodie Laubenberg stated, “I am so proud that Texas always takes the lead in trying to turn back what started with Roe v. Wade.”

Without the right to abortion, women cannot determine for themselves when and whether they will bear a child, they cannot determine the course of their own lives. After tremendous struggle and in a situation of significant changes in the status of women in society, the legal right to abortion was won with the 1973 Supreme Court Roe v. Wade decision. But ever since then, attacks on abortion rights have been a major spearhead in tightening the chains of women’s oppression with enforced motherhood. This case—a lawsuit filed by The Center for Reproductive Rights (CRC) against the state of Texas on behalf of a coalition of abortion clinics, challenging HB2—is a crucial pivot point in whether the attacks on abortion and women will rapidly accelerate.

Many recognize the stakes in the battle around abortion, now being focused up in this court case. 2,000 people demonstrated on March 2 outside the courthouse to defend women’s right to abortion (see "March 2nd at the Supreme Court: Standing up for Women’s Lives" at www.revcom.us). And 45 amicus briefs were submitted arguing against HB2 and urging the court to uphold the right to abortion. The breadth of those who added their arguments to this case show how deeply this issue hits at the very fundamental question of a women’s right to play a full role in society: Medical experts and public health experts with scientific studies showing that abortion is safe and that these restrictions will harm women; dozens of prominent social science researchers offering data refuting Texas’ claim that these restrictions will further women’s health; clinic providers detailing the dire consequences for women who have been denied access to abortion because of clinic closures; testimony by women, including professional women, poor women, and Black and Latino women, who talk about how important it was for them to have the right to an abortion; LGBT activists; religious leaders; legal experts; economists; historians; members of Congress and others in the government; and 40 leading scientists, science educators, and skeptics speaking out against the use of pseudoscience in court.

Women’s Lives at Stake

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“TRAP” (Targeted Regulation of Abortion Provider) laws like HB2 are a big part of the strategy by anti-abortion forces to, in effect, take away women’s right to abortion—imposing severe restrictions on abortion on a state-by-state basis. In the past five years some 250 restrictions on abortion have been imposed across the country. If the highest court in the land upholds HB2, it will set a legal precedent and political green light for similar laws around the country being proposed; as well as TRAP laws already passed that have been legally challenged.

The two biggest restrictions imposed by HB2 are: 1) that every health care facility offering abortions must meet building specifications to essentially become ambulatory surgical centers, or ASCs; and 2) that doctors who provide abortion services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic.

At the time HB2 was passed there were more than 40 facilities in Texas that provided abortions. As of October 2015, there were only 19. If HB2 goes into effect all but nine or ten abortion clinics will most likely be forced to close in a state that has 5.4 million women of reproductive age. It will mean that for 500 miles between San Antonio and the New Mexico border, there will not be a single clinic that provides abortions. It will force women to travel hundreds of miles to get an abortion, or risk their health or even their lives with self-induced or "back-alley" abortions, or it will mean enforced motherhood.

Deep Divisions on the Supreme Court

There are real differences on the Supreme Court on the question of abortion. This reflects real divisions in the U.S. ruling class over how to maintain the coherence of U.S. society in the face of huge stresses and changes in society and the world—including significant changes in the status of women in the last century, particularly those hard-fought and won through the women's liberation struggle and the broader revolutionary upsurges of the 1960s and '70s. There are those mainly grouped around the Republicans who have been building up a fascist social base around the imposition of fundamentalist Christian beliefs and values, who want to enforce an aggressive patriarchal, white supremacist, fascist rule. On the other hand, there are sections of the ruling class who see it more in the interests of U.S. imperialism and its need to rule over the people, to uphold formal bourgeois democratic rights and have a certain liberal inclusiveness of different sections in society, including minorities, gay people, etc.  This growing and intensifying split in the U.S. ruling class is reflected in the sharp differences on the court over this case.

Four justices (Kagan, Sotomayor, Ginsburg, and Breyer) voiced the view that the restrictions imposed HB2 serve no medical purpose, would place an undue burden on women trying to get abortions and were therefore unconstitutional. The three conservative justices, Thomas, Alito, and Roberts have a whole history of being clearly and aggressively anti-abortion. Kennedy is considered a “swing vote” who could side with the four justices against HB2.

Attorney Stephanie Toti representing the CRC argued that the restrictions of HB2 are completely unnecessary and will have the effect of denying thousands of women their constitutionally protected right to abortion. As the CRC brief shows, there is no need for the clinics to be upgraded to ambulatory surgical centers; these clinics do not require the size, layout or equipment of such centers. And doctors at these clinics do NOT need local admitting privileges since a woman who may end up going to a local hospital would be put under the care of a doctor there. Furthermore, as the CRC brief states, “The impact of these closures has been dire, delaying many women—and preventing others—from obtaining a legal abortion. This, in turn, has led to an increase in abortions later in pregnancy and in illegal abortions."

Facts that exposed the big lie that HB2 is about the health and safety of women came out in the hearing. For example, medical procedures that are much more complicated than abortions, like colonoscopies (28 times more dangerous than a pre-viability abortion) and liposuctions (30 times more dangerous than an abortion) are done in facilities that don’t have requirements stipulated by HB2. And some of the requirements are completely ludicrous. For example, hallways must be eight feet wide to allow two hospital beds to pass each other. And this would be required even in abortion clinics that only provide medication abortions, where no surgeries are performed, where there are no hospital beds that need to pass through hallways.

NO Burden! Abortion on Demand and Without Apology!

The Supreme Court has repeatedly and increasingly expanded the scope and basis upon which restrictions can be placed on the right to abortion. When the court heard the last major abortion case, Planned Parenthood v. Casey, in 1992, its ruling was a major attack on abortion rights. It ruled that states could restrict abortion at all stages of pregnancy (through mandatory counseling, mandatory waiting periods, parental consent laws, etc.) and that abortion could be restricted for reasons other than women's safety. And the court ruled that those proposing restrictions would no longer be required to prove a “compelling state interest.” Instead, those challenging the new restrictions would be required to prove that the restrictions placed an “undue burden” on women's access to their rights. This question of “undue burden” is a central issue in the current Texas HB2 case. Two things need to be said about this “undue burden.”

First, within the legal framework of this “undue burden” standard, it is crystal clear that the completely unnecessary restrictions imposed by HB2 do in fact place a HUGE burden on women trying to get an abortion. Before HB2, there were more than 40 facilities across the state that provided abortions. By October 2015, 21 of these clinics had been forced to close. This has led to a situation where: In 2012, fewer than 100,000 Texas women lived over 150 miles from a provider, and only 10,000 lived more than 200 miles away; But now 900,000 women in Texas live farther than 150 miles from an abortion provider, and 750,000 live farther than 200 miles. And this has very dire consequences—it means more women will die of complications from self-induced abortions.

But even more importantly, we should recognize how this “undue burden” legal standard has actually been used as a club to attack and take away women’s right to abortion. For decades now, the anti-abortion forces have been on a huge offensive—with their strategy of pushing through hundreds of restrictions on abortion, state by state. And those challenging these laws in court are the ones who are then put on the defensive—having to prove these restrictions are an “undue burden.” A fundamental right is being impaired and impeded and then the onus of proving this is put on the people who are being denied this right. This would be like if a local ordinance was passed that explicitly gave white homeowners the right to refuse to sell their homes to Black people and then a court ruled that, in order to contest this law, Black people had to show this was an “undue burden” to getting a home.

The right to abortion should be a fundamental right for women: ON DEMAND AND WITHOUT APOLOGY. And there should be NO “burden” at all to getting one.

Big Stakes for Women’s Lives

The LIE that HB2 is about women’s health and safety must be exposed. Like hundreds of other restrictions being imposed on abortion across the country it is designed to shut down clinics, to deny women the right to abortion. The anti-abortion forces have celebrated when clinics have been forced to close due to restrictions imposed by HB2.

This law aims to close more than 75 percent of all women’s health clinics that provide abortion services in the state—which will mean more women will suffer, will be subjected to enforced motherhood, will perhaps end up maimed or dead from desperate self-induced abortions.

If the court rules 4-4, the 5th Circuit's ruling (that overturned a decision to block the law) will remain in effect, and the law will stand. This will mean 9 or 10 clinics in Texas will close and many women will have to travel hundreds of miles to get an abortion—or resort to drastic, perhaps illegal, desperate and even fatal measures. If the court rules 5-3 to strike down the law, this would set a legal precedent and provide abortion-rights supporters with a defense against restrictions on abortion. The court could also remand the case, sending it back to Texas with further questions and the possibility of the court hearing it at a later date.

The legal right to abortion was not “granted” by the Supreme Court—it was won through massive and determined struggle. And while it is extremely important that there be a fierce fight in the courts to protect and expand the legal right to abortion, the people cannot rely on the courts to beat back the vicious and ongoing attacks by the anti-abortion/anti-women forces. The most decisive factor in defeating the attacks on abortion—including how the courts rule on restrictions like HB2—is through building massive and society-wide resistance, fighting for abortion on demand and without apology.

Women’s lives ARE at stake. Without the basic right to abortion, women cannot determine for themselves when and whether they will become a parent, and they cannot determine the course of their own lives. Without this right, women cannot be free—they are reduced to the status of breeders and incubators. But women are HUMAN BEINGS, capable of participating in EVERY realm of society. Women’s lives and bodies are NOT the property of the state, and a court of law should not be allowed to take away a woman’s basic humanity!


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