The Supreme Court’s Upcoming Abortion Ruling Is A Huge One, Especially For Minority Women

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Over forty years ago, the U.S. Supreme Court established a woman’s fundamental right to an abortion. Since then, lawmakers, special interest groups, and confused presidential candidates have worked to reverse this right. The court’s landmark case, Roe v. Wade (1973), struck down a Texas law that criminally punished the act of helping a woman get an abortion. Planned Parenthood v. Casey (1992) established an equally important precedent. The case ruled against a Pennsylvania law that placed “a substantial obstacle” in front of women wishing to obtain an abortion as an “undue burden.” Thus, the undue burden test was born to measure state abortion laws’ constitutionality. And now this test has thrust Texas back into the legal spotlight.

To be fair, Texas did plenty of thrusting on its own.

Few people will ever be convinced by opposing arguments on abortion. The eight justices are no exception to this rule, especially without a ninth, tie-breaking vote. In early 2016, Justice Scalia died in Texas and removed a conservative voice from the court, which remains sharply divided on social issues. The current case in question — Whole Women’s Health vs. Texas — revolves around the 2013 Texas HB2 law. John Oliver recently shredded the legislation’s new clinic requirements as arbitrary and geared more toward eliminating abortion than a medical purpose. The law places these restrictions upon abortions:

  • Pregnancies past 20 weeks don’t qualify for an abortion unless the life of the mother or child is at serious risk. In these cases, the abortion doctor must perform the procedure in a way that “provides the best opportunity for the unborn child to survive.”
  • Patients using the abortion pill must make up to four in-person clinic visits. These include two pill-taking visits, a follow-up appointment, and a mandatory 24-hour waiting period after an ultrasound for any woman who lives within 100 miles of the clinic.
  • Abortion clinic doctors must also have admitting privileges at a hospital within 30 miles. This is the hardest point to satisfy because hospitals aren’t jumping to grant such privileges.

HB2 has already caused clinic shutdowns. If left in place, the law could drive down existing facility numbers from 40 to 10. In a state as expansive as Texas, such a drastic cutback would make getting an abortion insanely difficult. The law has already driven up procedure prices too, which presents difficulty for low-income women looking for safe, legal abortions.

In March, SCOTUS considered case arguments about the constitutionality of HB2. And as expected, the proceeding’s transcript revealed conflict. Four liberal justices hammered away with their belief that the law serves no medical benefit and therefore presents an undue burden on patients. Three conservative justices felt otherwise. And an unconvinced Justice Anthony Kennedy had questions. He suggested that this law could increase surgical abortions, which he worried, “May not be medically wise.” But he thought there wasn’t enough evidence to tell how many clinic abortions would be affected. Kennedy’s vote will mean everything to this verdict.

A 4-to-4 SCOTUS tie would leave the appellate ruling in place and uphold the Texas law, which would hinder an untold number of women in the state, and the new legal precedent it would set would also potentially affect millions of women across the country, minority women in particular. Marcela Howell, founder and executive director of In Our Own Voice: National Black Women’s Reproductive Justice Agenda) explained to us how the stakes are high for her community.

“For the 725,000 Black women of reproductive age in Texas, HB2 creates higher costs, longer delays and extra steps for women seeking an abortion,” Howell said. “Black women already face significant barriers to accessing reproductive health care. HB2 dramatically heightened these barriers. Economic hardships, inflexible work schedules and extensive family obligations are facts of life for many Black women living in Texas. The obstacles resulting from HB2 — longer waiting times, extensive travel, costs of child care — make accessing abortion services all but impossible for many women.”

Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health, echoes that sentiment, adding more sobering statistics along with the bottom line, which is a virtual abortion ban upon her community.

“The 2.5 million Latina women of reproductive age in Texas are placed under increased burden by these laws because of their immigration status, zip code and income level,” González-Rojas told us. “For Latinas, particularly in the rural lower Rio Grande Valley, they would have to travel several hours and hundreds of miles to the next available clinic in Austin if the McAllen clinic shutters its doors. These barriers could mean a de facto ban on abortion for Latinas living in the Rio Grande Valley.”

Miriam Yeung, executive director of the National Asian Pacific American Women’s Forum, believes it’s unjust to elevate an abortion-seeking woman’s already high emotional burden with additional obstacles.

“Texas is home to the third largest community of Asian American and Pacific Islander women and girls in the United States,” Yeung said. “If HB2 is not struck down, abortion clinics will literally become hundreds of miles harder for our women to access. The emotional distance that women already have to travel to get an abortion is harrowing enough with all the unnecessary laws in place that make women endure waiting periods and undergo sonogram descriptions. By shutting down clinics, HB2 makes the physical distance all but impossible for some in our community to navigate.”

On a national level, the effects on these minority communities would be even more devastating. Howell references the Guttmacher Institute’s research of 288 recent laws that have quietly passed in many (predominantly Southern) states, which effectively shut down abortion access for 12.5 million black women. She also notes the additional difficulties presented by the federal Hyde Amendment that slaps funding restrictions on facilities that provide abortions. González-Rojas points towards the 28 million Latinas in the United States who would be “disproportionately impacted” by clinic shutdowns. And Yeung highlights the Indiana case of Purvi Patel, who ordered abortion pills online and received 20 years in prison for feticide. If HB2 stands, Yeung warns, “We are bound to see more Purvi Patels.”

All three experts we spoke to lament the paternal nature of laws such as HB2 and the Hyde Amendment, which disproportionately target women of color. Hyde did so by limiting funding, and HB2 seeks to eliminate the only available abortion facilities for poor women. As Howell puts it, “Laws cutting off access to abortion services for low-income women who are predominantly women of color are symptomatic of systemic discrimination.” She also believes that it’s time to push back and “trust all women to make the important personal decisions about abortion that are right for themselves.” González-Rojas agrees that these clinic shutdown laws “perpetuate already existing systems of systemic discrimination against immigrants, low-wage workers, mothers, and Latinas who are all three.” And Yeung did not hold back when questioned about whether these laws illuminate systemic discrimination.

“Absolutely. What else do you call it when you’ve got laws that were passed by a majority of straight, cisgender, white men but the burdens are born disproportionately by poor, women of color? Laws like HB2 are absolutely manifestations of systemic racism, sexism, classism, homophobia, ableism and nativism,” she argued.

Indeed, these shutdowns will only increase the level of difficulty in obtaining abortions. HB2 has not only shuttered clinics, which causes access hurdles associated with travel, but the increased demand at the remaining clinics has lengthened wait times and spiked the cost of obtaining an abortion. The effect of HB2 is akin to a ban — which zeroes in on women of color — on an entirely legal procedure. Thus, these experts hope the Supreme Court will rule that the law creates an undue burden and is therefore unconstitutional. Such a verdict would not only be a pro-choice victory but also a strike against systemic discrimination.