Just a few weeks after the Supreme Court justices agreed to hear a case that could reshape the entire landscape of abortion rights in America, a lower court judge issued a scathing ruling against a similar anti-choice law — and revealed the central strategy behind the ongoing legal battle for women’s access to abortion.
The law headed to the Supreme Court, which Texas lawmakers passed in 2013, poses new restrictions on abortion providers under the guide of improving patient safety and protecting women’s health. It has forced multiple clinics to close in the Lone Star State, with stark consequences: Patients now need to wait longer before they can end an unwanted pregnancy, and more of them are resorting to illegal procedures.
The highest court in the country will eventually weigh in on whether states are allowed to curtail abortion access in this way. But before the Supreme Court hands down its decision, a federal appeals judge has issued his own ruling on the subject, concluding that an analogous law in Wisconsin is unconstitutional because it restricts women’s access to health care without demonstrating any meaningful evidence that it improves safety at clinics.
The opinion from Judge Richard Posner, who serves on the U.S. Court of Appeals for the Seventh Circuit, doesn’t settle the issue pending before the Supreme Court, which could end up disagreeing with his conclusions. But in just three sentences, the ruling that Posner released on Monday lays bare the larger strategy that abortion opponents are pursuing across the country:
A great many Americans, including a number of judges, legislators, governors, and civil servants, are passionately opposed to abortion — as they are entitled to be. But persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them. They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.
In addition to Texas and Wisconsin, multiple other states have passed similar laws that dramatically increase the red tape imposed on abortion doctors and clinics, ultimately making it difficult for them to stay afloat. Known as the “Targeted Regulation of Abortion Providers,” it’s a nationwide strategy to indirectly restrict the procedure without banning abortion outright.
The crux of this strategy rests on the fact that state lawmakers can argue that TRAP laws improve women’s health. After all, holding abortion clinics to safety standards sounds logical on its face.
But, as Posner lays out in his opinion, that argument isn’t borne out in facts. Multiple studies have shown that abortion clinics are already highly regulated and extremely safe. Abortion procedures have an incredibly low rate of complications, and additional regulations on doctors — like requiring them to have unnecessary partnerships with local hospitals — don’t do anything to improve the quality of care that pregnant patients receive.
Posner concludes that Wisconsin’s TRAP law “cannot be taken seriously as a measure to improve women’s health,” writing that the evidence of health benefits is “nonexistent.”
Medical experts and researchers have been saying the same thing for years, attempting to raise awareness about the “sham laws” that are slipping under the radar because they’re misleadingly framed in terms of patient safety. As the legal challenge against Wisconsin’s law proceeded, some of them appeared in court. Dr. Serdar Bulun, the chair of Northwestern University’s department of obstetrics and gynecology, was particularly blunt.
“I think it is an unacceptable experiment to see if you decrease access [to abortion clinics] and see if more women die,” Bulun testifed. “It is not acceptable. It is not ethical. People will resort to illegal abortions. Should we do any experiment for this? I don’t think so.”