Polaneczky: Supreme Court saw through the Texas bull
Monday's landmark abortion decision called the Texas law for what it was - a big, fat lie
IF YOU WANT to read brainy prose about Monday's landmark U.S. Supreme Court decision regarding abortion restrictions in Texas, you should totally check out the opinion that Justice Stephen Breyer penned for the court.
Pour yourself some tea, lift it with a raised pinkie, and savor Breyer's facility with the English language. I'm telling you, the man has a way with words.
But if you're squeezed for time, let me sum up for you the court's opinion in one sentence:
"Don't make s--- up and expect us to buy it."
Hence, the court gutted the Texas bill called H.B. 2, which, in the guise of protecting a woman's health, instead impinged on her right to have an abortion.
The court got it right. Because H.B. 2 was a cynical, brazen attempt to keep women from exercising their right to choose. Good for five of the court's eight justices for seeing through it.
H.B. 2's central lie was that abortion is a dangerous procedure that threatens women's lives. So the bill called for abortion clinics to retrofit their facilities to adhere to the massive list of directives that regulate ambulatory-surgery centers. H.B. 2 also required all abortion docs to have admitting privileges at hospitals within 30 miles of the clinic.
The changes were unaffordable or unworkable for 50 percent of Texas clinics. The result, when the law went into effect in 2013, was that half closed, leaving tens of thousands of women hundreds of miles from abortion services.
All to allegedly protect their health, which wasn't threatened in the first place.
The court concluded Monday that H.B. 2 violated a 1992 ruling that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right" to an abortion.
Weirdly, Texas' antichoice advocates have never seemed as concerned about protecting the health of non-abortion patients, Breyer noted.
"The total number of deaths in Texas from abortions was five in the period from 2001 to 2012," he wrote, "or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). Nationwide, childbirth is 14 times more likely than abortion to result in death . . . but Texas law allows a midwife to oversee childbirth in the patient's own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. . . . The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion."
Yet, said Breyer, "Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions."
Oh, snap, H.B. 2!
Look: Pro-choice and antichoice people will never see eye-to-eye on abortion. The issue is too loaded, personal, and deeply felt on both sides. But the law is the law. And the law says women are allowed to choose abortion.
Which doesn't mean the procedure hasn't become highly regulated in the four decades since Roe v. Wade became law.
Depending on the state, the right to an abortion is bound by waiting periods; restrictions on late-term and partial-birth procedures; parental-consent requirements; prohibition on abortions paid for by public dollars; the right of individual health-care providers to refuse to participate in an abortion; and many more that I'm forgetting.
These restrictions, the courts have ruled, have not created an "undue burden" on a woman's right to choose (even if some were clearly created to stigmatize her choice).
But H.B. 2 did create an undue burden, and the court's strong wording about that is long overdue, says Susan Frietsche. She's a senior staff attorney with the Women's Law Project, which provided a friend-of-the-court brief to the Supreme Court on behalf of 10 abortion providers in Pennsylvania.
"What the court did was clarify how the 'undue obstacle' standard operates when the state is regulating abortion for the stated purpose of protecting women's health," says Frietsche.
"They concluded that overregulating providers doesn't make women safer. It actually puts them at risk because it shuts down the good providers, makes it more difficult for women to access a safe abortion. It's gratifying to know that the court saw through the charade."
In Pennsylvania, she says, Monday's ruling will surely result in a new look by pro-choice advocates at the 1,200-plus pages of regulations and administrative guidance that abortion providers are subjected to, and measuring them against the court's decision.
"No one is objecting to health regulations that are warranted and necessary to protect women's health," she says emphatically. "What we will be taking aim at is any antiabortion agenda disguised as something else."
Because, thanks to the Supreme Court's ruling, that s--- will no longer fly.