With the disastrous and ill-founded decision of the Supreme Court in the case of Whole Women’s Health v. Hellerstedt, the struggle against abortion in this country enters a new stage. In the last decade, dozens of states have passed laws regulating abortion clinics and the manner in which abortions may be performed. More than a dozen states passed laws requiring that abortion clinics, being medical centers that perform invasive procedures, have hospital grade facilities. The states passed these laws not only to protect the health of women but also because, as the Supreme Court ruled in Roe, the state has an interest in protecting the life of a viable fetus from wanton and dangerous destruction. Moreover, states have passed laws that mandate waiting periods or outlaw abortion pills. Like waiting periods for purchasing arms, this “common sense” type of measure ensures that abortion is not a rash decision taken without fully understanding the consequences and the mental anguish it may cause.
Yet, much of what has defined the legal landscape of abortions for decades has changed. First is the troubling manner in which the case was brought before the court. The plaintiffs argued that an “undue burden” had been placed on women. Whole Women’s Health, not a woman’s name, appears in the name of the case. No woman sought legal recourse because she felt her right to an abortion had actually been infringed. Instead, a third party, the provider of said right, stepped in to argue that such a law in Texas may hypothetically prove to be an undue burden. Imagine an arms company suing the government because it felt its laws had infringed upon my Second Amendment rights, or imagine a coal company suing because it felt limits on carbon emissions were infringing on my supposed right to cheap electricity. Not only is this unheard of, but it has no place in our legal system.
Furthermore, it changes the standards by which laws are judged. According to the decision, laws must be based on “convincing” medical evidence. Before, as long as there was evidence of a danger or a medical debate, states could intervene on the side of caution. Instead, legislatures will have to somehow distinguish between medical evidence and medical evidence that is really convincing evidence. It also extends the reach of the “undue burden” standard, the extra-constitutional test that came out of Planned Parenthood v. Casey. The case declares that states must not only have a rational basis to act (such as protecting the health of its citizens), but that it must also have substantial interest in acting. Finally, rather than weighing whether there was an actual undue burden, the court sought to weigh the costs and benefits of the law. It seems to use the cost benefit analysis to determine if there is an undue burden rather than determining if a right has actually been unduly infringed.
All of this means that states that have felt secure passing laws to protect the health and safety of their citizens will now face extreme scrutiny and uncertainty in future laws. Worse yet, many existing laws have been placed in a perilous position and may face legal challenges. Laws in Mississippi and Wisconsin requiring “admitting privileges”, a formal affiliation between an abortion clinic and a real hospital, have been rejected by the justices. Alabama, too, says it will abandon its admitting privileges requirement in the face of the decision. Laws on standards for facilities, waiting periods, types of procedures or counseling that can be deemed medically unnecessary or passed without the state having a compelling interest may come under threat.
The landscape of abortion in this country has been fundamentally changed. Those that provide rights, and not those from whom rights are supposedly being taken, can argue before the Supreme Court. Legislatures now must sort through medical debates and act on only what it can subjectively deem to be the most convincing. They must also apparently ensure that laws on abortion have greater benefits than supposed costs. Worst of all, many laws in other states passed in good faith may come undone. The calamity of this decision cannot be overstated.
RTL Media Co-Chair
Class of 2019