July 7, 2016 Liz Borkowski, MPH 0Comment

The 5-3 Supreme Court decision in Whole Woman’s Health v. Hellerstedt last week was a welcome step for women’s health, but resulted in the removal of only some of the barriers many US women still face in accessing abortion services. At issue in the case was Texas law HB 2, which required abortion facilities to meet the standards of ambulatory surgical centers and providers to have admitting privileges at a hospital within 30 miles of a facility. In the opinion of the Court, Justice Breyer explains “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”

While this emphasis on weighing benefits against burdens is important, Justice Breyer couldn’t seem to find any medical benefits at all in HB 2. The opinion states that the Court found no evidence that the admitting-privileges requirement advanced women’s health beyond the previously existing laws; the facility requirement “does not benefit patients and is not necessary.” In the Guardian, Jessica Valenti sums up the Supreme Court’s message as “laws purporting to protect women’s health while limiting access to abortion are an unconstitutional sham.”

As Teddy Wilson points out at Rewire, the damage HB 2 did to abortion access in Texas isn’t easy to reverse. Of the 41 facilities that offered abortion services prior to HB 2’s passage, 19 facilities closed and another four stopped providing abortion services. Re-opening closed facilities takes time, and obtaining a license “can take as long as a year.” Many Texas women who seek abortions will continue to face substantial barriers; analyses suggests many will seek abortions in other states and some will attempt to self-induce abortions.

As Vox’s Sarah Kliff points out, the Whole Woman’s Health decision doesn’t directly address the 286 other abortion restrictions states have passed since 2010. At Rewire, Teddy Wilson considers some of the states that have adopted reqirements similar to those in HB 2:

There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.

Laws requiring abortion providers have admitting privileges remain in effect in Arizona, Arkansas, Florida, Indiana, Kansas, Missouri, South Carolina, Tennessee, and Utah.

Although this Supreme Court decision is relevant to these laws, they still have to be challenged or repealed individually. Courts have already blocked related laws in Alabama, Arkansas, Kansas, Louisiana, Mississippi, Oklahoma, and Wisconsin, explains Ford Fessenden in The New York Times, and those laws will likely remain blocked. NPR’s Julie Rovner reports that Planned Parenthood announced plans to challenge or repeal laws in Arizona, Florida, Michigan, Missouri, Pennsylvania, Tennessee, Texas, and Virginia.

Laws requiring admitting privileges and surgical-facility standards for abortion providers aren’t the only laws that have the effect of limiting access to abortion services; other such laws include additional poorly justified requirements for facilities and clinicians as well as things like mandatory waiting periods. It might be that courts ultimately strike down all these laws, but until that happens the impacts on women are substantial. Sarah Kliff summarizes:

Legislatures can move faster than courts. … This leaves the pro-choice movement playing defense, filing court challenges to block these news laws. Supporters of abortion rights are constantly playing catch-up in ways that leave abortion access restricted.

The end result is that abortion access depends largely on income and location, as Ann Friedman writes for The Cut:

These barriers don’t affect all women equally. Although the Whole Women’s Health ruling will leave more clinics open, it doesn’t correct the fact that abortion is accessible (albeit stigmatized) for some women, and functionally unavailable to everyone else. Forty-three years ago, the Roe v. Wade decision made clear that a right is not a right if you can’t actually exercise it. Abortion is still legal, but practically speaking, for many women in many states, it’s not a right.

… Abortion has always been available to relatively wealthy women in America. Even in the pre-Roe era, women with the means to do so could travel to Mexico or fly to Europe for the procedure. Today women who are well-off have relatively unfettered access to abortion. Even if their state requires counseling or has a waiting period or places restrictions on certain procedures, they can go to another state. They’re more likely to be able to take time off work and afford child care for their kids while they travel to have an abortion. Choosing abortion usually requires access to money and transportation and work flexibility.

The Court’s opinion notes that the mortality rate for colonoscopies is 10 times that of abortions, and compared to abortion, childbirth is 14 times more likely to result in death. Importantly, though, this decision also signals that the Court may be more open to considering women’s experiences with laws that affect their reproductive health. Amanda Hollis-Brusky and Rachel VanSickle-Ward write at The Monkey Cage:

Here’s what Breyer’s opinion has changed. In a clear departure from [1992 Supreme Court decision Planned Parenthood v.] Casey, the majority opinion in Whole Woman’s Health announces that state legislatures’ findings about what is necessary for women’s health will now be considered alongside, and weighed against, the evidence that abortion providers and advocates offer in filings, testimony and other submissions to the court.

This means that courts can now examine and question what state legislatures say about a given abortion law’s health, safety and medical benefits. They can consider litigants’ briefs and amicus curiae briefs (“friend of the court briefs”). And political science research has demonstrated that amicus briefs are a key mechanism by which outside interest groups and actors can influence Supreme Court decisions.

Courts, in other words, will now hear women’s stories about their health and decisions directly, not just what legislatures have concluded about women’s health. That’s big.

I’ve been disturbed in recent years by laws and policies that limit access to a particular segment of healthcare, even though decisions about whether and when to have children are among the most consequential for women’s health. I’m encouraged to see the Supreme Court push back against unjustified requirements and emphasize the importance of considering barriers that affect women’s access to a medical procedure with an extremely strong safety record. For the moment, though, access to abortion still varies substantially by location and financial resources.

As the American Public Health Association explains in its statement urging repeal of several measures that restrict abortion access, “Policies that deny women abortions they seek deepen and entrench poverty among women and children.” Abortion access is important for women’s lives and for public health. The Whole Woman’s Health decision brings the US one step closer to a goal of equity that’s still far away.

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