August 2016

Access denied is a right denied

By Katharhynn Heidelberg

Heed, for a moment, the stridently anti-woman crowd’s complaints after the Supreme Court of the United States’ June decision in Whole Women’s Health v. Hellerstedt.

Perhaps the caterwauling and handwringing show you what it shows me: the critical importance of a Supreme Court that applies the law, not ideology. The reason the anti-woman crowd is so angry over the Hellerstedt decision is because of how invested that crowd is in controlling women, and because its leaders know the SCOTUS decision is a major setback to such efforts.

The high court struck down, 5-3, Texas’ 2013 abortion restrictions that required abortion doctors to have admitting privileges at a nearby hospital, and required abortion clinics to meet the same requirements as ambulatory surgical centers.

The court’s majority made the only finding that is constitutional: Texas’ regressive, paternalistic law violated the 1992 Casey decision, which held that a state cannot place an undue burden on abortion access.

Justice Stephen Breyer correctly called the provisions of the Texas law “a substantial obstacle in the path of women seeking a pre-viability abortion,” the purported medical benefit of which was illusory. Additionally, there was no proof that women would be safer in an abortion clinic that followed the same regulations as an ambulatory surgical center, Breyer noted. In fact, Texas imposes no such regulations on home births, even though childbirth is 14 times as deadly as abortion, he said.

Anti-choice zealots were not as rational — why would they be, when the court just stripped from them one of their biggest weapons?

Justice Samuel Alito referred to the Philadelphia “abortion doctor” Kermit Gosnell, who murdered three live-born infants. Apparently, Alito’s lemon meringue pie ingredients include apples and oranges, as Gosnell’s conduct had nothing to do with how his physical clinic building was regulated, and what admitting privileges he had. (And when you kill a liveborn infant, you have not performed an abortion.)

“The court is becoming a default medical board for the nation, with no deference being given to state law,” wailed Texas Attorney General Ken Paxton. The fact that the State of Texas itself sought to play doctor — and to do women’s thinking for them —apparently did not cross his mind.

Justice Clarence Thomas, whose contempt for women is well documented, also complained that the majority’s decision applied the undue-burden consideration in a way that would “mystify” lower courts.

But the only mystery is how anyone could think the Texas law was not an undue burden on an established right. And actually, there’s no mystery there, either: Texas knew what it was doing when it passed its anti-woman law. Copycat states with similar legislation knew, too, that the provisions are not about protecting women, but about using the power of the state to interfere with their decisions; using the power of the state to block them from exercising a right; and using the power of the state to control them.

How they expected such laws to pass the constitutional smell test is anybody’s guess. Perhaps they were emboldened by previous anti-woman, head-scratching decisions by the high court.

In Hobby Lobby v. Burwell, for instance, the majority found that Hobby Lobby owner David Green was for some reason entitled to have his for-profit, secular business treated like a church or religious institution with respect to the law concerning contraception. It cannot be overstated that the court in this ruling set a very, very dangerous precedent.

But logic prevailed in SCOTUS’ Hellerstedt ruling, one which imperils the similarly anti-woman laws in other states.

The Texas law should have been laughed out of the lower courts on the first go-round: There was no requirement under the law that a nearby hospital actually grant abortion doctors admitting privileges; hospitals may have even denied admitting privileges because a doctor performed abortions.

Second, the building requirements for abortion clinics were deliberately onerous and designed to put such clinics out of business, rather than to “protect women.”

Third: The notion that a woman seeking an abortion could just trot along to the next nearest provider was absurd. The next nearest was in some instances hundreds of miles away, or even in another state. A well-off woman with the means to travel, pay hotel lodging, transportation and time off work, (plus access to child care if she had children at home), might find the law a little restrictive or inconvenient. For women of moderate to low means, the restrictions had the effect of being insurmountable.

But the law — and this is important — was a deliberate stumbling block the state of Texas erected in front of all women seeking to exercise their right to obtain a legal medical procedure. I don’t care if the woman in question has the income and resources of Taylor Swift, a deliberate attempt to chill her constitutional right is still a deliberate attempt to chill her constitutional right.

Women won a victory under the Hellerstedt ruling. The proper thing to celebrate is the correct application of the law, and not that there were enough “liberal” justices to counteract the “conservative” justices’ desire to allow states to continue treating women as something other than full individuals in their own right. The “correct” makeup of the high court is that of justices who truly understand the law of the land and apply it in all instances.

This time around, women and the Constitution won.

But consider our current political climate, in which the Republican frontrunner, formerly on the record as pro-choice, has selected as running mate one of the most anti-choice zealots of them all. Donald Trump also promised a pack of hypocrites known as “evangelical leaders” that he would appoint anti-choice Supreme Court justices.

His veep pick, Indiana Gov. Mike Pence, cut Planned Parenthood funding so extensively that the cuts have been blamed for an HIV outbreak. (In Pence’s state, Planned Parenthood provided STD testing at a number of small clinics, which did not perform abortions; when they closed, an outbreak was seen in Scott County, reports Mother Jones.)

Pence supports de-funding Planned Parenthood, despite the fact that abortion care accounts for approximately 2 percent of its services, and despite the fact that the recent “fetal body parts trafficking” scandal grew out of information so misleading that two of its purveyors were indicted by a grand jury — in Texas, of all places.

Pence also signed a law (since blocked) barring abortion for reason of race, gender or disability. It would have also required cremation or burial of fetal tissue, even in cases of miscarriage, according to some published interpretations.

While the aversion to abortion for the above reasons is completely understandable — I share it myself — how does the state of Indiana intend to prove a woman’s motivation for seeking an abortion? Will she have to sign an affidavit that the prohibited reasons are not a consideration? How is that not a violation of her privacy, and her medical privacy, specifically? That is, it is completely irrelevant whether I or Mike Pence approve of a woman’s reason for seeking an abortion. It is a legal right.

At least, it is for now. But a woman’s right to decide for herself whether her body will sustain a pregnancy is under continual attack by people who will not rest until abortion is completely banned in the United States.

So that Texas ruling? It’s vital.

Katharhynn Heidelberg is an award-winning journalist in Montrose, Colo.