Whole Women’s Health: RBG Throws Down, Kennedy Keeps Air Of Mystery

The Supreme Court of the United States is hearing Whole Women’s Health v. Hellerstedt–perhaps the most abortion-related case since Planned Parenthood v. Casey in 1992. Like many of you, I’m feeling a lot of things right now.

At issue is the legality of the Targeted Restriction of Abortion Provider (TRAP) laws in Texas’s HB2 bill–like requiring abortion clinics to qualify to be Ambulatory Surgical Centers and for abortion providers to have admitting privileges at a hospital. Neither of these things does anything at all to protect the health or safety of patients. They mostly just sound like they might be good or helpful things. There is literally no reason for an abortion clinic to be an ambulatory surgical center, and there is no benefit whatsoever to your abortion provider having admitting privileges at a nearby hospital.

Why? Because they have to take you in anyway! Just like they would if anything else happened to you. All having “admitting privileges” really means in terms of your care is that your provider can be your attending physician–but if they’re not your attending physician, someone else will be. Which would likely be the case anyway! Ask anyone who has actually worked in an emergency room about this, and they will tell you exactly that. Conveniently, my own mother worked in one for years as a patient advocate and I was able to ask her, but perhaps you know someone as well.

The main problem with these “admitting privilege” laws is that many hospitals will refuse to give them to abortion providers–either due to their own personal beliefs or because they don’t want to get into it with people who oppose abortion. Because providers can’t get these “admitting privileges,” clinics have to shut down.

While these laws won’t do anything to “protect” anyone’s “health,” they will result in the closure of more abortion clinics who cannot comply with those “standards.” In 2013, when HB2 went into effect, the state had 41 abortion clinics–now only seven remain. If SCOTUS rules against Whole Women’s Health, more will close–which means even more women will be left unable to exercise their right to choose.

The real question here though is whether or not a state has the right to create laws that they say are for one purpose–to protect the health and safety of abortion patients–but in fact serve another–restricting access to abortion. Because the state of Texas can’t just outlaw abortion outright, they’re just making up a bunch of ridiculous laws to get rid of it another way. They are literally asking the Supreme Court to tell them it’s OK to be completely full of shit.

The whole case right now hinges on Justice Kennedy–who has really gone either way when it’s come to abortion and similar issues. If he votes in favor of Whole Women’s Health, we’re solid, and abortion rights will not be threatened. We have precedent on our side here–the Casey ruling determined that patients must not face an “undue burden” accessing abortion–and this law certainly creates one. Millions of Texans will now have to travel hundreds of miles in order to procure an abortion, which means that those women will have to take days off of work, pay for gas, pay for the “mandatory counseling” the state requires ($125), pay for lodging, and pay for the abortion. That’s a pretty “undue burden” if you’re not financially well off.

If he votes against them…the ruling by the lower court, allowing Texas to institute these ridiculous rules, will stand, but will not set a precedent. This means that this case or a similar one can be brought to SCOTUS again once there are nine judges again. It’s not good, but it’s not as bad as it would have been if Scalia hadn’t died.

During the hearing, Kennedy “appeared concerned that one effect of the 2013 law is that it has lowered the number of abortions resulting from women taking pills and increased the number of more invasive surgical abortions, which he said “may not be medically wise.” This is true–while medical abortions have gone up throughout the country, surgical abortions have been on the rise in Texas due to women being unable to get appointments in time.

This is a good sign. However, he’s also suggested that instead of ruling on the decision, that the court put the decision on hold for a while in order to see if the remaining clinics can accommodate the needs of everyone in Texas who needs an abortion. Which, let’s just say, is pretty unlikely. It’s always ideal to perform an abortion as early first term as possible, and requiring people to wait for weeks in hopes of getting an appointment is hardly ideal.

Predictably, Ruth Bader Ginsberg threw down her A-game, and completely threw Texas Solicitor General Scott Keller for a loop with her unassailable logic.

One of the arguments the State has tossed out is that the law doesn’t create an “undue” burden on people living near the El Paso area, because they could just go get abortions in New Mexico. Ginsburg, however, deftly pointed out that New Mexico clinics don’t have to have the same regulations that Texas has insisted are “crucial” to the health of patients seeking abortion.

“That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.

“So if your argument is right,” Ginsburg continued, “then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.”

“Well,” Ginsburg concluded, with just a hint of pique in her voice, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”


The court won’t issue their ruling until June, and until then, we just have to hope that Kennedy will not vote against precedent. We have to hope that no one makes it legal for states to create sham laws that claim to fulfill one purpose but actually serve another–because that could lead to a whole host of other problems, many of which might end up having nothing to do with abortion. Even if you don’t believe in abortion, you should believe that your government doesn’t have the right to bullshit you like this.