The Case Against Texas’s Attack On Reproductive Rights

Today, I joined thousands gathered at the steps of the Supreme Court, as it heard oral arguments in Whole Woman’s Health et al. v. John Hellerstedt, MD. It is widely regarded as the most consequential case on women’s reproductive rights that the Court has considered in decades. The law at issue — Texas’s H.B. 2 — imposes needless, dangerous restrictions on abortion access, such as medically unnecessary building and staffing restrictions, in a blatant effort to foreclose access to reproductive care.

Speaking in front of the U.S. Supreme Court, March 3, 2016

I was a law clerk for Justice Harry Blackmun in 1974 — just one year after he wrote the majority opinion in Roe v. Wade — and I have worked since then to protect women’s health, so I know firsthand the efforts to roll back reproductive rights. In 1992, the Court articulated the “undue burden” standard, establishing that states may regulate abortion but may not impose barriers that effectively amount to prohibitions. Since then, state legislatures have been engaged in repeated efforts to see how far they can push the restrictive envelope — imposing bad-faith laws and transparently political regulations clearly designed to turn back the clock and country to the pre-Roe era.

Many of these laws and regulations are ostensibly designed to protect women’s “health and safety.” But this reassurance is plainly a ruse. After Roe, the number of women seeking risky and self-induced abortions shrank significantly precisely because safe access was legally available. The shocking stories that alerted many to the need for safe abortion access — such as those of Karen Hulsey, who nearly died after fleeing to Mexico for an unsafe abortion in 1969, and Gerri Santoro, who bled to death after a failed abortion in a Connecticut motel room in 1968 — seemed like horrific remnants of a dark and deadly past.

Sadly, as the limits of the “undue burden” standard are tested by Texas and other states, women may be forced to return to those times. Between 100,000 to 240,000 women in Texas have tried to self-induce an abortion — and that is the number prior to the enactment of H.B. 2, which has raised new barriers to safe abortion care. As ineffective as these laws are at protecting health, they are certainly impactful at their true goal: shutting clinics down. In Texas and around the country, clinics are closing at the fastest rate ever. And as women have less access to safe abortion care, they will increasingly take matters into their own hands.

“But you need to know I will terminate this pregnancy. I have to terminate this pregnancy.”

Amy Hagstrom Miller, founder and president of Whole Women’s Health, has seen many of the heart-wrenching stories at the center of this case. She remembers one woman who would be forced to travel 250 miles for an abortion because the only clinics closer to her home had closed. “I cannot take that much time off work and afford childcare to travel to San Antonio,” the woman said. “But you need to know I will terminate this pregnancy. I have to terminate this pregnancy. So how about I tell you what I have in my cupboards, under my sink and in my medicine cabinet, and you tell me what to use and how to use it in order to do my own abortion.”
Another woman took an eight-hour bus ride to her nearest clinic with a life-threatening ectopic pregnancy. Described as being “alone and scared” in the city, she was told at the clinic that she would need emergency surgery. A doctor at that same clinic told the story of a different woman who showed up for an abortion when the clinic was shut down due to a power outage. Unable to afford a hotel, the woman roamed the streets for the weekend. When she finally got into the clinic, she needed to wait an unnecessary (but legally required) 24 hours after her unnecessary (but legally required) sonogram. Thankfully, the clinic provided her with a hotel room for the night.

With no one to accompany her to the procedure, Cara got in her car and began the drive alone — traveling six hours round-trip to access the health care she needed.

Then there is “Cara,” who called the National Abortion Federation Hotline to share her traumatic experience with Texas’s new regulations. After losing her job and trying to make ends meet for her three children, Cara learned she was pregnant. She knew that abortion care was the right decision for her and her family, and desperately sought help from friends and family to raise the funds to get the care she needed. She still wasn’t able to raise the money, and with the nearest abortion provider nearly 130 miles away, was forced to rely on a last-minute loan for her procedure and gas. With no one to accompany her to the procedure, Cara got in her car and began the drive alone — traveling six hours round-trip to access the health care she needed.

I have filed a brief — one of many — on Texas’s unconstitutional attempt to regulate reproductive rights out of existence. In fact, one of the most powerful briefs submitted on this case came from dozens of attorneys who have received abortions and courageously offered to share their stories. Too often the legal battle over Texas’s restrictive regulations, and the hundreds of similar laws around the country, obscure the everyday stories of the real-life burden of these laws on the women who live in these states.
To say the Texas law before the Supreme Court is about women’s health is a gross understatement of its significance. In reality, it’s about misguided politicians trying to legislate a constitutional right out of existence. It is one of the most obvious and obscene attacks on women and their health that our country has seen in decades, and worse yet, it is being duplicated by dozens of other states around the country. I was outside the Court today, standing with the men and women who understand our obligation to stand strong against these dangerous laws before they shut down more women’s health clinics around the country.
And we will prevail.
Not just for Kerry Hulsey and Gerri Santoro, but for the countless women who suffer from the effects of these abortion restrictions around the country. For women who cannot take multiple days off of work to drive hundreds of miles for health care. For women whose right to choose whether or not to start a family is stripped away by laws like H.B. 2. The burdens on women from these restrictions are clearly “undue” — they are unnecessary, dangerous, insulting and simply unacceptable.