What a kick it was yesterday to see the Supreme Court put the kibosh on one of the GOP’s most notorious scams.
We all know that Republicans are obsessed with governing women’s private parts (one of the big reasons why women decisively reject them in every presidential election). Their strategy, at the state level these past five years, has been to concoct obstacles that prevent women from exercising their constitutional right to a first-trimester abortion. Women gained that right 43 years ago in Roe v. Wade, a decision written by a Republican appointee, but, on this issue, today’s Republicans don’t hew to the rule of law.
The Texas measure, enacted in 2013 and imploded by the high court yesterday, was a classic scam. Republican lawmakers decreed that the 44 abortion clinics in Texas had to retrofit their facilities to meet the same standards as ambulatory surgical centers; and that the doctors who performed abortions had to have admitting privileges at local hospitals. The GOP con artists claimed that these moves were necessary to “protect women’s health.”
The result was that more than half the clinics closed, because they couldn’t afford the $1-million retrofits. As a result of the closures, millions of Texas women were faced with the prospect of driving hundreds of miles to find an open clinic (a daunting prospect, in particular, for low-income women who didn’t have wheels). The closures, of course, were exactly what the Republican lawmakers wanted.
Similar laws – some with crazy building codes, like requiring that each procedure room have a 50-square-foot closet – have been passed in nearly two dozen states under Republican control. The goal is to drive legal clinics out of business, and it has worked quite well. Since 2011, roughly 160 have closed or stopped performing abortions, and only 21 have opened.
But yesterday, the court – in a 5-3 ruling, with Republican appointee Anthony Kennedy casting the swing vote – exposed the Texas scam. It stated the obvious, that the law had nothing to do with protecting women’s health (because, in fact, their health was already being protected) and everything to do with erecting unjust impediments. In the court’s words, the Texas law provides “few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an undue burden on their constitutional right to do so.”
To understand the ruling, check out the test that a previous Supreme Court established back in 1992. That year, it ruled that some Roe regulations might well be reasonable; however, “an undue burden exists and therefore a provision of law is invalid of its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” What the court did yesterday was simply to assess the Texas law’s effect, and conclude – based on overwhelming evidence – that it did indeed place substantial obstacles in a woman’s path.
The majority justices noted the ridiculous travel distances, the longer waiting times, and studies which showed that a growing number of Texas women seeking abortions were either tempted to self-induce or to postpone their decisions until the second trimester.
The majority opinion also exposed the scam of requiring that clinic doctors have hospital admitting privileges, supposedly to protect women’s health: “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
And the majority concluded that the required costly retrofitting of clinics as ambulatory surgical centers had nothing to do with protecting women’s health: “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in a patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital or surgical center setting, has a mortality rate 10 times higher than an abortion. The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion.”
All of which exposed the scam that national Republican chairman Reince Priebus publicly extolled back in 2014, when he said, “We believe that any woman that’s faced with an unplanned pregnancy deserves compassion, respect, counseling, whatever it is that we can offer.” But the court basically said yesterday that it’s not compassionate or respectful to force women to drive hundreds of miles to exercise their constitutional right.
The good news is that this ruling may well imperil the similar laws in other states. Indeed, this morning, the high court deep-sixed the Republican scams in Mississippi and Wisconsin. Those states also required that clinic doctors obtain hospital admitting privileges, lower federal courts had nixed the requirement, and today the high court refused to overturn the lower rulings. All told, thanks to this application of the “undue burden” test, this is the biggest abortion-rights victory in a generation.
But Republicans – especially the evangelicals in the base – need not despair. I’m sure that President Trump will fulfill his promise to reverse women’s constitutional rights by appointing “great Supreme Court justices.”