Wednesday marked the beginning of June, and with it the impending decision in one of the most important cases regarding abortion care since Roe v. Wade.
In March, the Supreme Court heard oral arguments in Whole Woman’s Health v. Hellerstedt in the culmination of a years-long fight against House Bill 2 that started when the bill was House Bill 60, and then Senate Bill 5 in the first called legislative session in the summer of 2013.
The decision comes on the heels of multiple legal battles, injunctions, and a wave of devastation in the wake of the law’s piecemeal implementation despite the best efforts of abortion care providers and activists across the state.
To recap: House Bill 2, also known as the omnibus abortion bill, remains the most restrictive and sweeping anti-abortion bill to become law in Texas to date since Roe v. Wade crystallized the right of people to access abortion care as a protected right under the Constitution in 1973. It was an amalgamation of four bills that failed to pass during the regular legislative session, which did the following:
Required physicians providing abortion services to obtain admitting privileges at a nearby hospital;
Mandated that all abortion clinics meet the requirements of Ambulatory Surgical Centers;
Required physicians to follow outdated and cumbersome instructions for administering medication abortion;
Prohibited all abortions after 20 weeks except in severe cases.
Whole Woman’s Health v. Hellerstedt does not challenge all four provisions, but it does ask the Supreme Court to intervene on two of the provisions that have yet to go into full effect: the requirement for admitting privileges, and the requirement that clinics meet the standards of ambulatory surgical centers.
The arguments hinge upon the Supreme Court’s understanding of an “undue burden,” a precedent set in Planned Parenthood v. Casey that is ambiguous at best. In that 1992 decision, the Supreme Court determined that states do have the right to restrict abortion access on the state level, but only if it does not place an “undue burden” on those who seek abortion care.
At the heart of this case is the question of whether these two provisions create an undue burden, either together or apart. The stakes could not be higher, both in and out of the state. And June, the final month for a decision from the Supreme Court in this case, is here – bringing with it the certainty of a decision, but no clarity on what that decision will be.
The possibilities are almost literally endless, but fall into three broad buckets: Decent, OK, and The Worst.
In the best possible outcome, the justices could rule 5 to 3 that these provisions do create an undue burden on Texans seeking abortion care. Not only would this throw these regulations out, allowing clinics to open or continue operating in Texas, it would also overturn and prohibit similar laws from going into effect across the country.
It is also possible that the court will hand down more of a mixed bag, coming to different conclusions on the separate provisions, and failing to provide a clear definition of what an “undue burden” is to give clarity to the continuing fight for reproductive rights in Texas and other states. This weak decision could leave Texans with the current status quo – a status quo that is entirely unacceptable – and without recourse.
The final, and worst, possible outcome is only possible because the court still lacks a ninth member. With an even number of justices on the court, they could deliver a split decision, in which case the previous decision of the 5th Circuit Court of Appeals would stand, and House Bill 2 would be fully implemented. Clinics across the state would close, and the situation would go from bad to worse.
Those watching the case can expect a decision any Monday in June, or, should the decision be held until the end of the month, on any day during the last week. This is the time to cross your fingers, y’all.
