Today marks the 43rd anniversary of Roe vs. Wade, the Supreme Court decision that legalized abortion in every state. Since day one, anti-abortion activists have been chipping away at this right with court challenges, the Hyde Amendment, state laws and TRAP regulations that impose unneccessary restrictions on abortion providers that put them out of business. On March 2, the Supreme Court will hear a mammoth Texas-based case, Whole Woman’s Health vs. Cole, that will determine how far states can go with TRAP laws. Here's everything you need to know about this potentially game-changing case.
Why should you care?
You can't underestimate the potential impact of Cole. Having the legal right to terminate a pregnancy means little if the nearest clinic is hundreds of miles away from your home and there aren't enough appointments to go around. This is particularly true for women who are lower income and less able to take time off from work, predict their work schedules, get childcare and pay for their trip(s) to the doctor's office.
What's the Texas law at stake?
The 2013 law at the center of Cole, House Bill 2 (HB2), is the one state senator Wendy Davis tried stop with her historic 13-hour filibuster, but Governor Rick Perry was able to pass by calling another special legislative session. HB2 requires abortion clinics to follow the same building, equipment and staffing rules that hospital-style surgical centers do. As a result, a majority of the state’s providers have closed their doors. Millions of Texas women are now more than a 100 miles away from a clinic. Wait times have increased from 5 to 20 days in the Dallas Fort Worth Area. And a statewide study found that a whopping 100,000 to 240,000 girls and women have, before and after,* tried to self-induce their abortions at home.
Although the official guise of HB2 is protecting women’s health, its proponents are not shy about admitting their bias. A few months before it became law, Perry even declared at an anti-abortion rally that an ideal world is one without abortion. "Until then," he said, "we will continue to pass laws to ensure that they are rare as possible.”
What does Cole cover?
Cole challenges only two parts of HB2: hospital admitting privileges and ambulatory surgical center requirements. Getting hospital admitting privileges can be a major challenge to Texas abortion providers given the state's hostility to abortion. Requiring clinics to meet the specifications of multi-million dollar surgical centers are an impossible financial hurdle for most providers. Neither are medically necessary or applied to similar medical procedures that are routinely performed in outpatient settings.
Together, these two requirements have caused 23 of the 42 Texas clinics that existed before HB2 to close. In a state with 4.5 million women of childbearing age, the 19 remaining clinics won't be able serve everyone in need, and this doesn't take into account that all but 10 of the existing clinics would likely shut down if HB2 is upheld, doubling the demand on each of those remaining facilities.
The Cole decision could be limited to the Texas law or it could set a precedent for the many states that have or are considering similar TRAP laws. “Eighteen states have TRAP laws that have been blocked, and 13 states have enacted laws that have not been blocked,” Ilyse Hogue, president of NARAL Pro-Choice America, said of the terrain in a recent media call. “In 2015, 400 anti-choice bills were introduced and 47 became law."
Who is bringing the case?
The main petitioner in this case is Whole Woman’s Health, an group of independent abortion providers that had operated five clinics in Texas prior to this law passing. In total, four abortion clinics and three doctors are behind the case.
Who has their back?
At the start of the year, 45 amicus briefs were filed in support of the petitioners. These briefs provide outsiders that have a stake in the case's outcome to offer additional evidence or arguments. One such group was the National Latina Institute for Reproductive Health (NLIRH), a reproductive justice group with a significant base in Texas, particularly along the border in the Rio Grande Valley. “We wanted to breathe life into the impacts of the case,” says Jessica Gonzalez-Rojas, NLIRH's executive director, of why they filed their brief. “These laws negatively and disproportionately harm the women that we work with and we wanted to ensure that their voices are included in the process. It becomes a legal and official public document that is formally submitted to the court for their review.”
Nine other Latino civil rights groups signed the brief, including those that haven't taken a major stance on abortion before, likd the League of United Latin American Citizens and the Mexican American Legal Defense and Educational Fund, Inc. NLIRH has long been emphasizing the fact that HB2 and laws like it disproportionately impact women of color who are more likely to be low-income.
“It’s the Latinas in Texas who can’t get childcare, can’t get access to transportation, can’t get time off work. These are the community members who are going to suffer,” says Gonzalez-Rojas.
A group of 12 Black women’s reproductive justice organizations also jointly filed an amicus brief in the case. Among those groups is In Our Own Voice: National Black Women’s Reproductive Justice Agenda. Says its executive director, Marcella Howell: “Black women already face systemic barriers to quality, affordable reproductive health care. This law just exacerbates that harm. HB2's practical effect is barring Black women in Texas from exercising their legal right to an abortion.”
Medical experts, lawyers and many women telling their own abortion stories have also contributed briefs.
What are the main legal arguments?
While access to abortion on a wide scale is at stake, the legal basis of the Whole Woman's Health challenge relates to a 1992 Supreme Court case called Planned Parenthood v. Casey. The Casey decision opened the door for state regulation of abortion access, but it ruled that any law that places an “undue burden” on a woman’s ability to get the procdcure is unconstitutional. Casey defines “undue burden” to a certain extent, but Cole will likely clarify it further.
According to Stephanie Toti, the Center for Reproductive Rights lawyer who will argue Cole, "The state imposes an 'undue burden' when the law has the purpose or effect of putting a substantial obstacle in the path of a woman seeking an abortion." This year's case, she says, takes up the question of “what it means for something to be a substantial obstacle and how carefully must courts scrutinize that question."
Essentially, there are two elements to determining undue burden based on Casey: purpose and effect. The abortion providers that Toti and her team are representing in Cole have a strong argument to make that HB2 was passed with the purpose of severely restricting access to abortion, and that it has also had that effect.
Toti’s team is arguing that HB2 violates the 14th Amendment's due process clause, which falls within the same constitutional arguments that Roe and Casey were argued under. The 14th amendment “protects life, liberty and property from governmental interference,” says Toti. In Roe, “the court said that the liberty guaranteed by the 14th amendment entitles people to a certain realm of privacy [in which] the government can’t intrude,” explains Toti. Toti’s opponent is Scott Keller, the solicitor general of Texas. Their argument in response to the petitioners has been that the court’s should defer to the legislature on the question of whether these laws provide a benefit to women.
I asked Toti about whether it will matter to the Supreme Court that certain groups, like women of color, may be disproportionately impacted by the law. “Within the context of the undue burden standard it’s common for courts to look at whether a law is going to impose burdens on particular groups or communities,” she says.
What's the timeline?
On March 2, Toti and her team will spend just one hour in front of the Supreme Court arguing the case. Justices will then review all of the evidence submitted in the lower court hearings of this case as well as the amicus briefs from both sides. The decision itself will likely be released in late June, a time reserved for the court’s most controversial decisions, like the gay marriage decision this past year.
Are we on our way back to pre-Roe conditions?
If the Supreme Court upholds HB2, conditions won't be unlike those prior to Roe: The most privileged and monied women will be able to travel to access safe abortions and everyone else will have little to no options. They will likely attempt methods to end their pregnancies on their own.
The more liberal states will probably maintain open access to abortion, but the more conservative ones will pass more laws that will shut down every remaining clinic. This movement is already well under way, and the decision in this case will either stop those efforts in their tracks, or open the legal pathway for more of them.
But unlike the pre-Roe era, we’ll likely see a significant increase in arrests and incarcerations for these clandestine procedures, like what is facing Purvi Patel, the Indiana woman who is serving a 20-year "feticide" sentence for allegedly taking abortion pills she'd procured on the Internet. We know that those most likely to face these consequences are low-income women and women of color, who face tougher policing and less access to the legal representation they need. That makes the stakes for women who get illegal abortions much higher.
At issue are basic, very human questions: How easy will it be for a woman who needs an abortion to get one? How much will the state she lives in dictate what happens to her?
Right now, geography means the difference between a woman making a phone call and getting an appointment within a few days and a woman having to travel far to multiple appointments or wait for weeks to even get one. Cole could widen this gap even more severely—or it could knock out some of the main legislative tactics the anti-choice movement keeps using. So don’t sleep on this one folks. It’s likely to be the biggest reproductive rights decision of our lifetimes.
*Piece has been updated to correct the statement about the number of self-induced abortion attempts in Texas. The study found that 100,000 to 240,000 women have attempted to self-induce abortions ever. The study did not cover the numbers before and after the passage of HB2.