by Kate Taylor, West Fund Volunteer
On March 2nd, The Supreme Court of the United States heard oral arguments in Whole Woman’s Health v. Hellerstedt, which would determine the constitutionality of HB2 and other TRAP laws. The case comes at a critical time, when clinics throughout the South are shutting down at a shocking rate; currently, Louisiana and Alabama are facing the closure of all but one of their clinics, and Mississippi’s last remaining clinic is only open by emergency court order. While arguments took place inside, outside over 2,000 reproductive justice activists gathered to call on SCOTUS to #StopTheSham and support safe access to abortion in Texas and nationwide.
Starting at 6AM activists gathered at the front of the Supreme Court, coming from as far away as El Paso, the Rio Grande Valley, Chicago, and Atlanta, with many traveling through the night to be heard at the Rally To Protect Abortion Access. A diverse coalition of abortion providers, activists, and women telling their stories rallied while oral arguments took place inside. The case against HB2 and similar laws hinge on the concept of “undue burden” established in 1992’s Casey v. Planned Parenthood, which means any laws that the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a fetus that is not yet viable” are unconstitutional. Laws like HB2 shut down clinics by requiring intense standards for operation such as admitting privileges and surgical theatres, all of which the American Academy of Gynecologists and the American Medical Association have deemed unnecessary.
Inside the court, oral arguments took place for an hour, with 20 minutes for each attorney
and 10 minutes for the solicitor general. Justices
Ginsberg, Kagan, and Sotomayor took the lead in defending reproductive rights through a spirited questioning of both lawyers; Justice Sotomayor pointed out the absurdity of the requirements for ambulatory surgical centers, stating:
“I'm sorry. What? She has to come back two separate days to take them? ... When she could take it at home, it’s now she has to travel 200 miles or pay for a hotel to get those two days of treatment?”
While the lawyers for the state of Texas have repeatedly
pointed out that women in El Paso could go to New Mexico for termination, Justice Ruth Bader Ginsburg expressed confusion because New Mexico has no such requirements for ambulatory surgical centers or admitting privileges that HB2 says are essential for patient health and safety. Justice Kagan further extrapolated that many more invasive or dangerous procedures like liposuction are routinely performed in doctor’s offices that are not required to fit ambulatory surgical center requirements.
After a little over an hour, the lawyers emerged from the court to a rousing crowd cheering in support of Whole Woman's Health and the litigators defending them. Now, the fate of millions of women lies in the hands of the eight justices, with Justice Kennedy believed to hold the swing vote. If the court splits in a 4/4 ruling, the Fifth Circuit’s ruling upholding HB2 will stand, leaving millions of Texas patients without abortion care and opening the door to more TRAP laws across the country that will shut down clinics and strand those in need. The ruling is expected in late June.
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