Last week, in the case of Whole Women’s Health v. Hellerstedt, the U.S. Supreme Court took up the question of whether Texas’ statute raising safety standards at abortion clinics, and requiring abortion doctors to have hospital admitting privileges, is justified on the grounds of protecting the health of women. As with all matters where abortion law is concerned, logic and calm reflection are not the first responses on the scene; every lawsuit concerning abortion surfaces the entire, noisy and persistent abortion debate as it is lived in the United States.
The Plaintiffs in the case—a collection of abortion clinics and doctors —claim that the statutes violate the current constitutional standards for evaluating abortion regulations, i.e. that they place an “undue burden” or “substantial obstacle” in the path of a woman’s choice to obtain an abortion. They suggest that many or perhaps all Texas abortion clinics could fail to meet the new statutory standards such that pregnant Texas women would be dramatically underserved, consigned to drive long distances, or forced to postpone an abortion until a later week of pregnancy when abortion poses greater dangers to the mother. They further assert that the laws were born of animosity toward abortion and towards women exercising the choice to abort.
The state of Texas replied with evidence documenting the substantial number of women who are harmed annually at Texas abortion clinics and require follow-up hospital care. These included cases of lacerated intestines, incomplete abortions followed by sepsis, and others. The state also cited the health violations on record for clinics in Texas and elsewhere in the U.S.—ranging from the pedestrian to the grotesque—which led the state to conclude that abortion clinics require oversight similar to any other “ambulatory surgical center.”
The transcript of the oral argument indicates that the Justices will look closely at the data regarding the supply of abortion in Texas after the regulations went into effect (some in 2013 and some in 2014). This inquiry will be complicated by the fact that the number of Texas abortion providers has been declining for decades prior to clinic safety laws. Many factors are responsible, but among the most noteworthy are women’s greater willingness to carry an unexpected pregnancy to term; the radically reduced cultural stigma of nonmarital birth; greater availability of private-provider abortions due to expanded insurance coverage of abortion; and a “consolidation” in the abortion clinic industry as Planned Parenthood has displaced smaller independent clinics with “mega clinics” capable of handling 17,000 to 30,000 clients annually.
The current dispute over Texas' abortion laws is a proxy for the ongoing U.S. struggle over legal abortion. The contours of the struggle were set by the Supreme Court ‘s “constitutionalizing” of abortion in 1973 and again in 1992. The Court thereby assumed the power to determine—according to tests the Court created—which regulations are consonant with the constitutional right to abort, and which constitute an “undue burden” prior to the fetus’ viability, or an interference, post-viability, with abortions sought for the woman’s life or “health” (with health defined as “all factors, physical, emotional, psychological, familiar, and the woman’s—relevant to the well-being of the patient”).
The Court deduced the right to an abortion from the much disputed “due process” clause of the Fourteenth Amendment. In order to do so, the Court had to make two incommensurate findings: first, that every state in the U.S. had banned most or all abortions since the biological events of conception had been discovered in the mid-nineteenth century; but that, second, legal abortion was still a part of the fabric of our history of “ordered liberty” such that Americans would not have a free society without it. These findings are “incommensurate,” or, in this case, contradictory, because the Supreme Court’s own definition of “ordered liberty” refers to rights recognized—not denied— by states throughout history. Even revered pro-choice legal scholars such as Ruth Bader Ginsburg and John Hart Ely have wished on different occasions that the Court had placed abortion on a more convincing footing.
Every local abortion law has thereby become a matter of high drama, given that the Supreme Court might have the last word. Not every case goes to the Court, but when it does, the Justices have the final power of decision. Furthermore, a sizable number of Americans—over the past 43 years and counting—deny the legitimacy of the Supreme Court’s right to arrogate such cases to itself.
The upshot: Abortion remains legally fraught, and has never been “mainstreamed” into American medicine or culture. Even in this environment, however, the vast majority of Americans would like to help women avoid facing an abortion decision altogether, and to make sure that women are not injured at abortion clinics or possibly die from complications.
Advocates for legal abortion are loathe to acknowledge, however, the intrinsic moral hazards associated with abortion clinics, which lead to risky health environments for women. The relatively few doctors willing to do abortions (a small and declining number even before the clinic protests and surveillance which are standard fare today) are confronted with a high number of women facing crisis pregnancies. State governments, eager to stay clear of the abortion debate, fail to provide the same kind of health and safety oversight of abortion clinics that they provide other ambulatory surgical centers.
Pro-choice advocates had hoped that massive state-funded contraception programs would lead to declining numbers of unintended and nonmarital pregnancies thus precluding women’s need to resort to abortion. As documented in Federal Reserve Chair Janet Yellen’s landmark paper on the subject, however, the programs have rather led to the shaping of sex and marriage marketplaces which produce higher rates of unintended pregnancies, nonmarital pregnancies and abortions. This is the result of the phenomenon of “risk compensation” whereby more people engage in uncommitted sexual encounters when they believe that they are protected from the “risks” of these encounters. But rates of all these phenomena instead increase and “shotgun weddings” decline.
Pro-choice advocates now place their hopes in long-acting contraception, but this strategy too includes risks for women’s health, the appearance of racial and socioeconomic targeting, increased sexually transmitted infections, and possibly further immiseration (Yellen’s term) of women in the sex and marriage “marketplaces”.
Pro-life advocates have responded by opening thousands of centers scattered across every state and the District of Columbia to assist pregnant women and single mothers. Pro-life churches continue to provide more services to poor and pregnant women than any entity other than the government. Also, because so many women experience grief after they have abortions, undergo repeat abortions (50%), or pursue “make up” pregnancies, the pro-life movement also offers nationwide post-abortion healing services.
It is possible that the Supreme Court will vote 4/4 on the Texas abortion regulations at issue in Whole Women’s Health and thus leave in place most of the regulations. They might also vote 5/3 to strike the regulations. No matter what the Court eventually decides, one can be sure that the U.S. abortion debate will not flag and that, given the vacancy on the Supreme Court, abortion will continue directly to influence presidential elections.
Unpleasant as the abortion debate can be, both sides should take some comfort that Americans refuse to make their peace with abortion, given what abortion is.
Whole Woman’s Health v. Hellerstedt, Transcript of Oral Argument in the Supreme Court of the United States, March 2, 2016.
Yellen, Janet L. et al. “An Analysis of Out-of-Wedlock Childbearing in the United States.” The Quarterly Journal of Economics, Vol. CXI, Issue 2 (May 1996): 277-317.
Brief of Amici Curiae Operation Rescue and National Hispanic Christian Leadership Conference/CONELA in Support of Respondents Seeking Affirmance, in Whole Woman’s Health v. Hellerstedt (U.S. Sup. Ct. No 15-274, 2016).
To learn more about the U.S. Supreme Court case overturning the state of Georgia’s restrictive abortion law, see Doe v. Bolton, 410 U.S. 179 (U.S. Sup. Ct. No. 70-40, 1971).
Whole Women’s Health Center v. Cole 790 F. 3d 563 (5th Cir. 2015).
Sapatkin, Don. “Philadelphia taking small steps to prevent future health-care horrors.” The Philadelphia Inquirer, March 16, 2011.
Cohen, Susan A. “Envisioning Life Without Roe: Lessons Without Borders.” The Guttmacher Report on Public Policy, Vol. 6, No. 2 (May 2003).
Image Credit: Thomas Hawk / flickr creative commons.
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Melanie Morel-Ensminger:There are at least three glaring problems with this article:First, there is no record of large numbers of Texas women having serious complications from legal medical abortion procedures, or even large numbers of American women in any state suffering such complications.Second, there is absolutely no evidence at all of so-called "abortion grief syndrome." Study after study shows that the vast majority of women who undergo safe legal abortion have no regrets, and indeed many report a sense of great relief.Third, those religious organizations which sponsor fake "women's health" clinics in order to dissuade women from having abortions by any means at all, including through lies and deception, put women's lives at risk by delaying a desired abortion procedure until a time when the pregnant person is more at risk to the very complications that the author supposedly is concerned about.I appreciate Sightings reporting from a religious perspective on the issues of the day, but was appalled to see such a biased article, without a whiff of any opposing, more liberal, fact-based, and reasonable viewpoint.