The Supreme Court announced on Friday that it will hear Whole Woman’s Health v. Cole, a case that presents a greater threat to a woman’s right to choose an abortion than any other that the Court has heard in the last 23 years. At issue is whether states can enact laws that appear, at least on the surface, to function as health regulations, but that actually exist to restrict or even shut down access to abortion. As ThinkProgress previously explained,
On their surface, the state laws appear to be efforts to improve the quality of physicians who perform abortions or the safety of the facilities where these procedures take place. Both state laws, for example, require abortion doctors to have admitting privileges at a nearby hospital. The Texas law mandates a long list of “electrical, heating, ventilation, air conditioning, plumbing, and other physical plant requirements as well as staffing mandates, space utilization, minimum square footage, and parking design” requirements for abortion clinics. These rules line up with the standards Texas imposes on “ambulatory surgical centers.”
Yet, while these may seem like health regulations at first glance, they do little, if anything, to actually advance women’s health. As the Texas Hospital Association explains, for example, “thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges.” Hospitals provide care to women who experience complications during an abortion — complications, it should be noted, that are extraordinarily rare — regardless of whether the physician who performed the abortion has admitting privileges or not. Similarly, the ambulatory surgical center requirement applies even in abortion clinics that do not perform surgeries — many abortions are induced by medication alone. The laws, in other words, impose burdensome and expensive restrictions on abortion clinics even when those restrictions bear no relationship whatsoever to advancing women’s health.
If the Supreme Court holds that states can use such sham health laws in order to restrict abortion, that could effectively be the end of a constitutional right to abortive care, as the only limit on anti-abortion laws could be lawmakers’ and advocates’ creativity in finding new ways to disguise abortion restrictions as health regulations.
The outcome in this case is likely to come down to the vote of Justice Anthony Kennedy. Though Kennedy typically votes with opponents of abortion, he voted to grant a temporary stay preventing Texas’s anti-abortion law from going into effect. So this case might be one of the rare cases where Kennedy determines that an abortion restriction goes too far.