The Explosive Potential of the Whole
Woman’s Health Case
by Nancy Woloch
On March 2 the Supreme Court will hear arguments about a 2013 Texas law that affects access to abortion. The law at issue in Whole Woman’s Health v. Cole requires doctors who perform abortions to have admitting privileges at a nearby hospital (no more than thirty miles from the clinic). It also requires abortion clinics to have facilities equivalent to those at an outpatient surgical center, that is, more equipment than Texas law demands in doctors’ offices where more hazardous procedures such as colonoscopies or liposuctions are performed. The rise of the Whole Woman case just as an election looms may provoke voters in ways unsought by sponsors of the Texas law.
Several Texas clinics challenged the law, but a federal appeals court, the Fifth Circuit, upheld the new requirements. The Supreme Court now faces several questions: Does the law protect women’s health, as Texas claims? Does the law impose an “undue burden” on women who seek abortions? The “undue burden” consideration arose in Planned Parenthood v. Casey (1992), which confirms the right to abortion set forth in Roe v. Wade (1973). A law can be an undue burden, states the Casey decision, if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” It is likely that the Supreme Court, when it reviews the Texas case, will further explicate “undue burden,” “substantial obstacle,” and, especially, “purpose or effect.”
Texas claims that it has “wide discretion” to pass medical regulations, that it enacted the 2013 law to protect the health of those who seek abortions, that the law ensures qualified doctors, and that it cuts delay if a patient needs a hospital. The clinics contend that the state requirements were not designed to promote women’s health, that the law is a tactic to close clinics, and that it imperils women’s health by “reducing access to safe and legal abortion.” Since 2013, critics of the law charge, the 42 clinics that once provided access to abortion in Texas now number nineteen and would dwindle to ten if the law survives review. Amicus briefs that support the clinics have started to accumulate, including a brief by historians who work with legal issues. Laws that claim to protect women’s health can restrict women’s choice, the historians state, and thus “warrant careful scrutiny by this Court.” The Court will consider whether the Fifth Circuit decision reflects precedents in abortion law, as supporters of the Texas law claim, or whether the Fifth Circuit acted in error when it enabled Texas to enforce the new law, as its detractors argue.
The Whole Woman’s Health case, to be decided in June 2016, has explosive potential. The Supreme Court has not issued a major decision on abortion since Gonzales v. Carhart (2007), which upheld a federal law barring what is called “partial birth” abortion. The Whole Woman’s Health decision will affect the options of women in Texas, especially in rural Texas, who may find the right to an abortion out of reach. The decision will also affect women in Mississippi, where a kindred case, one that involves hospital admission requirements for doctors, has arisen and where only a single clinic that provides abortion remains. The Supreme Court has not yet decided whether to consider the Mississippi case, Currier v. Jackson Women’s Health Organization. The decision in Whole Woman’s Health, finally, will reach women in other states that have enacted abortion regulations similar to those in Texas, such as Wisconsin, Louisiana, and Alabama, and in states that intend to do so.
The Whole Woman’s Health decision will have further ramifications in an election year. Whichever way the Court may go—and there has no been signal as to what might happen—the conflict over the Texas law is likely to sway the women’s vote. The reappearance of a major abortion case will remind undecided women voters that state legislators, who are likely to be men (in Texas the lawmakers of 2013 were 80 percent male), can voice opinions that have an impact on women’s health – or even act to impede women’s rights under the pretext of protecting women’s health. Similarly, the Texas case will remind women voters of what a yet more conservative Supreme Court, with new members chosen by a future president, might decide. Overall, the case will prompt women voters to think about the fragility of women’s rights. Whatever happens in the Supreme Court, the timing of the Whole Woman’s Health decision may well advantage Democrats.
Nancy Woloch teaches history at Barnard College, Columbia University. Her books include A Class by Herself, Women and the American Experience and Muller v. Oregon: A Brief History with Documents.