Eight months from now, Roe v. Wade could be dead.
On Friday, the Supreme Court will consider whether to hear two cases involving ambitious state laws seeking to restrict — or even eliminate — access to abortion. This is actually the second week in a row that the justices will discuss whether to hear these cases, Currier v. Jackson Women’s Health Organization and Whole Woman’s Health v. Cole, although the Court’s recent practice has been to discuss a case during at least two conferences before announcing that the Court will take the case. If the justices agree to hear either or both cases, they could announce this fact as soon as Friday afternoon.
The Court is widely expected to agree to hear at least one of these cases — which present the biggest threat to a woman’s right to obtain an abortion that has reached the Court since 1992’s Planned Parenthood v. Casey, a case that explicitly led the justices to consider whether Roe v. Wade should be overruled.
Cole involves a Texas law that imposes onerous new credentialing requirements on doctors and similarly onerous building requirements on abortion clinics. Together, these restrictions are expected to shut down over 80 percent of the abortion clinics in Texas. Currier involves a Mississippi law that imposes similar credentially requirements to the ones imposed in Texas. If this law goes into effect, it’s expected to shut down Mississippi’s only abortion clinic.
Both laws fit a strategy embraced by anti-abortion activists and state lawmakers in recent years. Lawmakers can and should regulate abortion clinics to ensure that they are safe and pay proper regard for the health of patients. A state may require that all abortions be performed by adequately trained physicians, for example. Or it may mandate the use of sterile equipment where appropriate. The Texas and Mississippi laws, however, try to drive a wedge into the space current legal doctrine carves out for laws protecting women’s health.
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.
Anti-abortion lawmakers, for what its worth, can find some justification for such laws in the Supreme Court’s most recent major abortion case. In 2007’s Gonzales v. Carhart, a 5–4 Court concluded that lawmakers enjoy “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Though there is little real uncertainty about, say, the health benefits of requiring abortion medication to be dispensed in a facility that is set up to perform surgeries, opponents of abortion are quite adept at finding experts willing to testify to the health benefits of laws like the ones in Texas and Mississippi. So if the “wide discretion” established by Carhart is as wide as abortion opponents would like it to be, there will be little practical limit on lawmakers’ ability to shut down abortion clinics.
Indeed, the fate of Roe v. Wade itself — or, at least, what remains of it after decisions like Casey and Carhart — probably rests in the balance in Cole and Currier. If the Supreme Court holds that states may enact sweeping abortion restrictions, just so long as they mask those restrictions with the thin veneer of a health regulation, then Roe is effectively dead. The only real limit on abortion restrictions could be the creativity of anti-abortion activists who have already proved quite skilled at disguising efforts to halt abortion as health regulations.