Today, the Supreme Court handed down another major decision. After they voted last week to protect affirmative action (yay!), but then were deadlocked on DACA and DAPA effectively killing the Obama Administration’s sweeping relief for undocumented immigrants (boo!), I wasn’t sure if I could take any more important SCOTUS decisions. Thankfully, the weekend offered a brief reprieve before today, when Justice Stephen Breyer announced the 5-3 majority opinion in Whole Woman’s Health v. Texas wherein the Court sided with reproductive health providers against the “undue burden” placed upon them by Texas legislators.
In the historic Roe v. Wade decision that first legalized abortion as a constitutionally-protected right, Supreme Court justices ruled that “abortion . . . is performed under circumstances that insure maximum safety for the patient.” However, in Planned Parenthood v. Casey, the majority of Supreme Court justices also established 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 access abortion procedures].” In Whole Woman’s Health v. Texas, the Supreme Court was challenged to decide whether newly passed regulations on the Texas’ abortion clinics — requiring that clinics have extra-wide hallways and that abortion providers have admitting privileges at local hospitals — posed an undue burden that unconstitutionally compromised abortion access for Texas’ women.
The regulations were passed in Texas as part of a concerted national effort by conservative anti-abortion activists and legislators to eliminate abortion access by enacting state-level Targeted Regulation of Abortion Providers (TRAP) laws. In essence, the anti-abortion movement seeks to disenfranchise women by enacting laws state-by-state that make the constitutional right to access abortion procedures so practically tedious as to be essentially inaccessible for the vast majority of women.
TRAP laws have been highly effective in limiting abortion access. Since 2010, the number of state-level anti-abortion laws passed each year as more than tripled. In that same span, 1 in 10 abortion clinics have been forced to shutter their doors leaving at least five states with only a single clinic to serve the entire state’s population.
Texas’ most recent spate of anti-abortion restrictions — including the contested requirements that clinics meet ambulatory surgery center standards — had already resulted in the closing of numerous Texas clinics that offer abortion. It’s worth noting at this point that the regulations apply far stricter standards on abortion providers than are placed on birthing centers in Texas, even though childbirth can be life-threatening to both mother and child when complications are encountered.
Today, the Supreme Court ruled that such TRAP laws such as the one contested place an “undue burden” on abortion providers and that the law had already resulted in the closing of more than half of the state’s abortion providers exponentially increasing the rate at which abortion became geographically inaccessible for women. Further, the Court was swayed by the testimony by numerous medical experts saying that abortions are generally safe with minimal rate of complication and an almost zero rate of death, and that there is almost no evidence that Texas’ new regulations improve health outcomes for patients.
Women everywhere, including AAPI women, should feel a measure of relief from this decision. 1 in 20 women who seek an abortion are AAPI, and the rate at which pregnancies end in abortion is higher for AAPI women than for the general population. Many AAPI women — 20% of whom lacked health insurance prior to passage of the Affordable Care Act — relied on reproductive health clinics not just for abortion access, but also for general reproductive healthcare services. This is a necessary service: one-third of AAPI women do not get routine mammograms or PAP smears. Laws that compromise the function of these reproductive healthcare providers will have a devastating impact on women of colour, including AAPI women. Texas is home to roughly 650,000 Asian American women.
The goal of TRAP laws has been to frustrate abortion providers with a tangled web of laws that make it so difficult to seek an abortion that clinics are forced to close their doors. This strategy has the additional effect of targeting abortion providers that primarily service low-income women and women of colour, who lack the resources to circumvent the obstacles realized by TRAP laws. Pregnant women of colour — including AAPI women and immigrant women — find ourselves criminalized by the anti-abortion movement’s efforts. In Indiana, Purvi Patel was jailed when she suffered a miscarriage after anti-abortion activists used laws intended to protect pregnant women from domestic abusers against her to allege (absent any evidence) that she had carried out a home abortion. Patel was sentenced 20 years in jail, and is still awaiting an appeal.
Today’s decision is a major victory for Texas women, and for women across the nation. The Supreme Court’s decision protects the constitutional rights of women — including AAPI women — to access an abortion. More importantly, the decision imperils anti-abortionist’s TRAP strategy, which in practice disproportionately targets the rights of women of colour, immigrant women, and low-income women.
I applaud the Court’s justices for bravely drawing a line in the sand against TRAP laws. Meanwhile, I have to wonder: what will it take for anti-abortionists to finally realize that women actually have rights that they must respect?
