The Fictions Around Abortion in America

The Supreme Court has struck down parts of a major Texas law regulating access to the procedure. To do so, it had to navigate competing claims of medical fact and an intent to protect women.

Kevin Lamarque / Reuters

In a single paragraph, Ruth Bader Ginsburg named something the other U.S. Supreme Court justices wouldn’t: Regulations on abortion providers, often called TRAP laws, are not intended to protect the health of women. In addition to writing a short concurring opinion, Ginsburg joined four other justices in a decision Monday that effectively struck down major components of H.B. 2, a 2013 Texas law that created significant, and arguably unsustainable, requirements for operation procedures at abortion clinics. While the majority opinion methodically countered each of the arguments in defense of the law, which had previously been upheld by the Fifth Circuit Court of Appeals, Ginsburg went straight to the point.

“It is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions,’” she wrote. “Laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ … cannot survive judicial inspection.”

No one joined her—not Stephen Breyer, who wrote the majority opinion, nor Elena Kagan and Sonia Sotomayor, the other female members of the liberal wing of the Court. While the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt is legally complicated—concerning issues from the standing of the plaintiffs to their right to pursue this case all the way to the Supreme Court—the lonely stand of Ruth Bader Ginsburg speaks to the difficult issue looming behind it: Legislators both for and against bills like H.B. 2 claim they are protecting the health of women. When all parties claim to have good intent and medical science on their side, the Court is left to navigate competing narratives of truth—and fiction—about abortion in America. But it’s difficult for the Court to name those fictions directly.

The case the Supreme Court decided on Tuesday addresses two components of H.B. 2. First, it required doctors who perform abortions to have admitting privileges at a hospital within 30 miles of their clinics; and second, it required all facilities where abortions are performed to meet the standards of an ambulatory surgical center—basically, a hospital operating room. Those who supported the regulations in H.B. 2 would deny they’re trying to restrict abortion. They rally around explanations based on medicine and science to defend the extra requirements.

The only way the Court could judge whether this law violates women’s rights was through its consequences: the number of abortion facilities that could no longer provide the procedure following the enactment of the admitting-privileges requirement (roughly 20, according to Court documents); the cost of full compliance with the new law (anywhere from $1.5 to $3 million); the number of miles the average Texas woman now lives from an operational clinic (1.6 million live more than 50 miles away; another 1.7 million live between 100 and 200 or more miles away).

While the majority held that it is legitimate to make the “common sense inference ... that these effects would be harmful to, not supportive of, women’s health,” even that was contested by the minority. “It is not unassailable ‘common sense’” to assume that the ambulatory-surgical-center requirement would limit clinics’ capacity to perform abortions, Samuel Alito wrote in a dissenting opinion. “Faced with increased demand, ASCs could potentially increase the number of abortions performed without prohibitively expensive changes,” he added. He offered up some math to suggest that centers with a greater capacity could perhaps accommodate more women at a greater profit margin. Because this particular requirement was only enforced for a short period in between court challenges in October of 2014—when only eight clinics in a 280,000-square-mile state could operate—there’s less tangible evidence to show that this requirement would have a negative consequence for clinics and women compared with the other requirements of the law. According to Alito, it’s still in the realm of contested theory.

His logic did not win out; he was only joined by John Roberts and Clarence Thomas. But this kind of argument helps create an air of doubt around putatively health-based abortion restrictions: If they’re not explicitly designed to restrict abortion, and “when the law’s justifications are medically uncertain,” the restrictions could theoretically be just as legitimate as any other policy.

“A law either infringes a constitutional right, or not.”

The legal standards used in Whole Woman’s Health and other abortion cases add to the confusion about what restrictions are and are not legally justified. Thomas, who wrote a separate dissent, focused on the notion of “undue burden,” a test for abortion regulations established by the 1992 Supreme Court case Planned Parenthood v. Casey. The majority in this case, Whole Woman’s Health, wrote that the two contested requirements place “a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access … and each violates the federal Constitution.” Thomas took issue with this idea: “A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment,” he wrote. “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

In other words, Thomas is arguing, the Court’s decision was driven by political judgments about incremental legislative measures. Because there’s no clear, objective test for evaluating the constitutionality of abortion restrictions, the Court can only resort to decisions based on its members’ values.

People on both sides of the abortion issue have argued something similar—my colleague Garrett Epps, for example, wrote in 2014 that “the undue-burden standard that [Sandra Day] O’Connor invented [in Casey] was always vague and vaporous at best.” This is creates yet another challenge to court objectivity in decisions on abortion: It must rely on an unclear legal standard to adjudicate an extremely contentious and morally charged policy issue.

Monday’s ruling was a significant victory for abortion-rights advocates, and the Court seems to have sent a warning to legislators in other states who are considering similar legislation on admitting privileges and medical requirements for abortion facilities.

Yet, other components of H.B. 2 remain intact following the Court’s decision. The law also limits abortions performed after 20 weeks into a pregnancy, and it restricts medical abortions, in which pregnancies are terminated using pills. These kinds of restrictions are extremely common in the United States, and the wave of new abortion-related laws that began in 2010 after conservative lawmakers won seats in statehouses across the country is not likely to slow any time soon. Although this 5-3 decision would likely have stood even if Antonin Scalia were still still alive, the next abortion challenge that reaches the Supreme Court may not fall along such clear lines. The next Supreme Court justice’s opinions on abortion will matter. Even for conservatives who hate Donald Trump, this is the one issue that could win them over to the Republican presidential nominee: He has promised, over and over, to appoint only pro-life justices.

Whole Woman’s Health v. Hellerstedt definitively privileges one side’s version of the truth about abortion restrictions. But that doesn’t mean the facts that won out in this decision are not still contested. And it does not mean that in future decisions, a different story of good intentions and medical evidence won’t prevail.