BEFORE THE Supreme Court on Wednesday, Texas is set to argue that new regulations on abortion clinics in the state are designed to protect patient health. The justices should see through that pretext. Texas’s restrictions are an assault on abortion access dressed up as concern for pregnant women. Previous court rulings barred laws that place an “undue burden ” on women seeking abortions. If this precedent has practical meaning, it should rule out what Texas is trying to do.
In 2013, Texas imposed several rules on abortion providers. Licensed facilities would have to meet the same standards that ambulatory surgical centers do, and they would have to be staffed by doctors with admitting privileges at local hospitals. Neither rule sounds outrageous, but both are disproportionate to the small risks associated with abortion procedures. The data show that routine abortions — particularly those performed before 16 weeks, which are at issue in this case — are quick and safe, more so than other minor procedures that occur in officelike settings all the time, such as colonoscopies.
Yet the state would require abortion providers to substantially rebuild their facilities to do things such as widen hallways and meet minimum square footage requirements, which would ramp up costs and close a large number of Texas abortion clinics. The proof that the rules are outrageous is that the restrictions apply even when abortion doctors do nothing more than hand women pills to take at home.
The state responds that there is enough debate about the medical value of its regulations that the courts should steer clear of attempting to substitute its judgment about them for the legislature’s. Then how about taking the judgment of medical experts? The American College of Obstetricians and Gynecologists and the American Medical Association declared in a brief last year that Texas’s requirements “are contrary to accepted medical practice and are not based on scientific evidence. They fail to enhance the quality or safety of abortion-related medical care and, in fact, impede women’s access to such care by imposing unjustified and medically unnecessary burdens on abortion providers.”
Texas also argues that the burdens would not be as severe as abortion providers insist, and they argue that abortion providers have not shown that likely consequences — such as appointment wait times skyrocketing, more abortions happening later in pregnancy and more illegal abortions — would occur. In fact, there would be a wave of clinic closures; it is hardly reassuring if, as the state maintains, most Texas women “will live within 150 miles of an open abortion clinic.”
In 1992 in Planned Parenthood v. Casey, the court ruled that the state “may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.” It is hard to see how the court can take those words seriously and side with Texas this time around.