The Supreme Court is set to consider Whole Woman's Health v. Cole, which addresses two Texas laws related to abortion clinics.
A group has filed an amicus brief arguing that this law violates the 'undue burden' test established by the Court in 1992 in Planned Parenthood v. Casey, a decision on the legality of the the Pennsylvania Abortion Control Act of 1982 signed by Democratic Governor Bob Casey - the last time Democrats allowed anyone not pro-abortion to attain national prominence. The Supreme Court ruled then that abortion clinics had to obtain informed consent, had to provide information about how the abortion could be detrimental to her health, had reporting requirements to the state, needed parental consent and was legal as a medical emergency while throwing out spousal consent. The result was that abortion was established as a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.
The brief filed Jan. 4, 2016 by the American Public Health Association (APHA) says the Texas law makes it too hard for women to get convenient abortions. They say that the standards for abortion clinics and who is allowed to perform them is equivalent to the 'undue burden' of spousal consent the Supreme Court removed in Planned Parenthood's loss of 1992.
"If the High Court upholds the Texas laws women there will be forced to travel very long distances for abortion care or will lose access to this service altogether," says Susan F. Wood, PhD, Executive Director of the Jacobs Institute of Women's Health at Milken Institute School of Public Health (Milken Institute SPH) at the George Washington University.
In opposition are lawyers for abortion provider in the state of Texas, who don't want their facilities to have to meet the standards of ambulatory surgical centers or have to hire physicians who also have hospital admitting privileges in case of complications. Supporters of the law argue that abortion clinics should meet the minimum standard of places that draw blood or do radiology tests and that relying on an ambulance and emergency admission after something goes wrong is the very problem that got abortion protected at the federal level in 1973's Roe v. Wade.
Many existing abortion clinics in Texas do not meet these standards because they have never had to, so the lawyers for them argue they should never have to - which is an argument that has never worked for any other public health issue, where businesses must comply or give way to competitors that do.
The public health proponents argue that closing abortion clinics, even if they lack medical standards or doctors who can admit patients in event of complications, would impact poor women.
"Abortion is a safe and critical component of comprehensive reproductive care," says Sara Rosenbaum, JD, the Harold and Jane Hirsh Professor of Health Law and Policy at Milken Institute SPH and a coordinator of the brief. "If the Texas laws stand, women will face significant risks, not only in Texas but across the nation as other states follow its lead."
That is an argument unlikely to sway the Supreme Court, since proponents say unlimited abortion on demand for any reason is widely popular. Even before Roe v. Wade in 1973, 20 states already had legal abortion laws...though not Texas, which is where the case originated.