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The Supreme Court Women Just Did a Fucking Awesome Job Defending Abortion Rights

Today, the Supreme Court began hearing arguments in "Whole Women's Health v. Hellerstadt," which will determine the constitutionality of Texas's notorious omnibus anti-abortion bill HB2. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan...

by Lauren Oyler
Mar 2 2016, 11:05pm

Photo via Wikimedia Commons

This morning, the Supreme Court heard oral arguments in its first abortion case in nearly a decade: Whole Women's Health v. Hellerstadt. The case, which is also the most significant the court has seen since Roe v. Wade, will determine the constitutionality of Texas's notorious omnibus anti-abortion bill HB2, which was passed in 2013 despite Texas Senator Wendy Davis's famous 11-hour filibuster against it. Hanging in the balance is not just abortion access in Texas, which has already decreased dramatically since Governor Rick Perry passed the bill, but reproductive rights across the country. If the court upholds HB2, it will set a dangerous precedent for other states to restrict access to necessary reproductive health care.

Whole Women's Health v. Hellerstadt is specifically concerned with two onerous provisions of HB2: It requires that any abortion provider must also have admitting privileges at a nearby hospital and that all abortions be performed in "ambulatory surgical centers," or hospital-like outpatient surgery centers. While conservative politicians claim legislation like this—collectively known as Targeted Regulation of Abortion Providers, or TRAP laws—is designed to protect women's health, in reality bills like HB2 create pointless and actively harmful obstacles to a woman's right to choose what happens to her own body.

Read more: Looking Back on a Horrendous Year for Abortion Rights

The Supreme Court has issued three rulings on abortion since 1992, when, in Planned Parenthood v. Casey, the court ruled that states could set specific abortion restrictions as long as these restrictions did not place "undue burden" on access. Each of the subsequent rulings placed further restrictions on abortion. However, because the repugnantly conservative and now deceased Justice Antonin Scalia will not be involved in this case, the court is now evenly divided between justices appointed by Democrats and those appointed by Republicans, although Justice Anthony Kennedy occasionally swings liberal. While this means HB2 will probably not be upheld directly, a split court usually upholds the lower court's verdict, without setting a precedent. This would mean continued restrictions in Texas, where tens of thousands of women are self-inducing abortions because of their inability to access safe, affordable care. Alternatively, the court could also decide to hold the decision until the next term, once a new justice has taken Scalia's place.

Today's Supreme Court session lasted 90 minutes, and the transcript from the proceedings presents the court's four liberal justices as skeptical of HB2's provisions.

"We were hearing reports that [some of] the judges, particularly the female justices, were really commenting on and referencing the extreme [nature] of the [HB2] measures," Beth Lynk, the state policy press officer for Planned Parenthood, told Broadly. In a statement, Planned Parenthood president Cecile Richards reiterated that sentiment. "We were pleased the court seemed to recognize how these laws are medically unnecessary and hurt women by placing an enormous burden on them," Richards said. "When this law went into effect in Texas, our health centers were flooded with calls from women who weren't sure where they could now turn for care. If this law is allowed to stand, the rest of the country could go the way of Texas, with women unable to access abortion safely or legally across whole swaths of America. This cannot be the reality for women in the 21st century."

Our work affects women's lives. Whether this case ends positively or negatively, we're going to be fighting.

Indeed, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg were particularly aggressive in questioning HB2's validity. At one point, Sotomayor replied, "I'm sorry, what?" when the lawyer representing Whole Women's Health confirmed that a woman who could have once taken the abortion pill safely and legally at home "now... has to travel 200 miles or pay for a hotel" in order to satisfy HB2's requirement that she take the pills—which are ingested hours apart—in an abortion facility. (Of which there are now only 19 in Texas; if HB2 is upheld that number could drop to ten or fewer.) While Justice Kennedy questioned whether it was really possible to say that HB2 had caused the closure of so many of Texas's abortion clinics, Kagan commented that the situation in Texas was "almost like the perfect controlled experiment as to the effect of the law, isn't it? It's like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen," suggesting that HB2 has indeed put "undue burden" on abortion access.

The conservative judges were relatively reserved, with Justice Clarence Thomas not speaking at all. This is probably because they know they are wrong.

Meanwhile, reproductive rights advocates rallied outside the hearing. They say they are hopeful, and unwilling to give up their fight. Outside the Supreme Court, over 40 speakers, many of whom had faced barriers when trying to access abortion care in states like Ohio, addressed a crowd of over 3,000 women about the importance of abortion access and the dangers of HB2.

Read more: Backwards-Ass Florida Politicians Want to Put You in Jail for Abortion

Sadie Hernandez, a reproductive rights advocate from Texas, opened the rally with a speech about how critical the case is for maintaining abortion access to lower-income women in the state.

"I started doing advocacy work in high school, but it wasn't until the HB2 filibuster that I was inspired to get really active and get out there on the ground," Hernandez told Broadly. "I noticed that there was a gap [in advocacy]—it was mostly older white women, and I thought, It's time to bring young people of color to the abortion rights movement."

Hernandez said the atmosphere outside the Supreme Court today was "positive, but passionate."

"We're angry that our rights are being taken away but positive that we'll keep fighting," she said. "At the end of the day, we all need reproductive healthcare. Our work affects women's lives. Whether this case ends positively or negatively, we're going to be fighting."

When I asked Hernandez if she had seen the transcript from today's arguments, she replied that she hadn't yet, but people inside had told her, "RBG just killed it."

Tagged:
Broadly
abortion
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sonia sotomayor
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Elena Kagan