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Unpacking the details of the SCOTUS decision: Whole Woman’s Health v. Hellerstedt

By Avens O’Brien

The Supreme Court issued their ruling on Whole Woman’s Health v. Hellerstedt yesterday, a 5-3 decision striking down excessive regulations on abortion clinics in Texas.

The case challenged two provisions in Texas’ HB 2:

  • Requiring doctors to obtain admitting privileges from a hospital 30 miles from the clinic where they perform abortions.
  • Requiring abortion clinics to be elaborately retrofitted to comply with building regulations that would make them “ambulatory surgical centers”.

Both provisions were struck down with this ruling.

I found this case particularly clear cut as a libertarian — this was an obvious case of over-regulation, which caused more than half of the clinics in Texas to close. If any other industry faced this sort of punitive regulation, conservatives would have been up in arms, but since it was the abortion industry, many were perfectly fine with the law.

The result of this law meant 10 abortion-capable clinics would exist in Texas to serve the 5.4 million women of childbearing age. Abortions, of course, are sometimes medically necessary, and this would literally put women’s lives at risk, as well as creating undue burden on the right to abortion.

Under Texas law, medical abortions must occur at an abortion facility. A medical abortion generally occurs during the first nine weeks of a pregnancy and involves taking two pills over the course of 36-72 hours — the pills cause the uterine lining to contract and the body to expel the product of the pregnancy. So under Texas law, the pills must be taken at a licensed facility. In most states, the first pill may be taken at the facility but the second can be taken in the comfort of one’s own home.

A medical abortion, on average, costs nearly $500 (sometimes higher). With the closures of abortion facilities in Texas due to provisions within HB2, this means many women in Texas have to travel over 200 miles to get to a clinic. This means women not only have to pay for the abortion itself, but also have additional costs of multi-day travel and/or accommodations as they must take both pills at the facility.

There are no other medical procedures involving taking pills which require a patient take them within an ambulatory surgical center, just abortions in Texas.

A dilation and curettage procedure is used to remove tissue from inside the uterus. It is used to treat various medical conditions, as well as clear the uterine lining after a miscarriage or an abortion. A D&C can be used for an abortion at or before 12 weeks. For the record, 90% of abortions happen before 12 weeks. A D&C is also sometimes a necessary medical procedure to prevent infections after a woman has miscarried a pregnancy.

Under the provisions of HB2, the D&C procedure is still entirely legal to perform in a doctor’s office (not a “ambulatory surgical facility”) if the procedure is being carried out after a miscarriage. However, if the exact same procedure is for an abortion, thanks to HB2, it suddenly can only be performed in these ambulatory surgical facilities (of which there are 10 in Texas).

During the arguments held in the case, Solicitor General Scott Keller of Texas was questioned about the distance Texan women may have to travel to procure a legal abortion. Keller testified that women living in El Paso, instead of having to travel a significant distance within the state of Texas, could simply hop the border to New Mexico to have an abortion procedure there. However, New Mexico does not have either of the same requirements Texas has, so if the argument the state is making is that these regulations are needed for the health and safety of Texan women, it’s interesting that going to another state without such regulations is an acceptable proposition.

Ultimately, it was determined by the court that the provisions of HB2 presented undue burden on the right to an abortion, and they have been struck down.

This is not just a victory for abortion rights advocates like myself, but also to any who believe punitive regulation of industries is not something the government should be involved in.

This was a libertarian victory, opposing state regulations that create undue burdens on service providers and consumers.

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  • dapperrync

    The problem with the Court’s decision is not the end result of less regulation, but the unprincipled judicial activism which it employed to get at it’s result. Under the precedent set in Planned Parenthood vs. Casey, the Court was supposed to review these regulations under rational basis review. That just means that the State has to have a rational reason of protecting women’s health, which certainly these laws would have helped at least a little in obtaining. But the Court departed from this standard, and if you read Justice Thomas’ dissent (the only one close to being a libertarian on the Court) you will learn that the new balancing act standard employed by the majority is far closer to resembling strict judicial scrutiny than rational basis review.

    Now if this new legal methodology was the way the Court treated all of our liberties, we might not have a problem with it. But the Court has it’s favorite rights like abortion and gay rights, and is apt to poo poo on rights of religious liberty. At the same time yesterday, the Supreme Court refused to intervene in a Washington State regulation that will force a Christian Pharmacy to either provide the morning after pill or go out of business. This regulation was also a solution in search of a problem, as the pharmacy would simply refer women to another pharmacy for these drugs, and there are no reported incidents of women being unable to fill their prescriptions via referral. The regulation was obviously NOT religiously neutral, nor necessary, but yet the 9th Circuit Court of Appeals upheld it. And yesterday the US Supreme Court did nothing to stop this invasion of personal religious liberty. In doing so, they have demonstrated the double standard that they employ when dealing with laws they don’t personally like versus ones they do.