Whole Woman’s Health v. Hellerstedt: Women’s Undue Burden

Women’s health clinics are the new battleground for abortion rights. Forty-three years after abortions were legalized in the case of Roe v. Wade (1973), states cannot make abortions illegal, but they are doing their best to stop women from having access to medical information about abortions and abortions clinics. “Targeted Regulation of Abortion Providers” (TRAP) laws attempt to dissuade women from getting abortions by requiring women to make multiple visits to clinics, view an ultrasound of the fetus before making a decision, or receive medically incorrect information from a physician, such as the fact that abortions can cause breast cancer.

For the sake of women’s health, TRAP laws need to be eradicated immediately. As a result of these laws, there has already been a rise of unsafe self-induced abortions. These thinly veiled attempts at preventing women from having access to health care providers, which offer abortion services, are already having a devastating effect on the community. Not only are women resorting to unsafe methods of aborting unwanted pregnancies, they are also losing access to cervical cancer screenings, STD and STI testing, pregnancy tests, and other services provided by organizations like Planned Parenthood.

This is bigger than just abortion. Legislators implement laws like the Texas House Bill 2, also known as the HB2 , under the pretense of protecting women’s health, when they are doing nothing more than trying to undermine a woman’s right to choose. HB2 made it to the Supreme Court in the Whole Woman’s Health v. Hellerstedt case, in which Whole Woman’s Health, a women’s healthcare provider, is disputing the claims of  John Hellerstedt, the Commissioner of the Texas Department of State Health Services. Hellerstedt claims that HB2 protects women from unsafe clinics. Whole Women’s Health argues that HB2 is actually just another way to prevent women from having access to abortion services.

Let’s take a look at the bill.

The HB2 law requires abortion clinics to meet the same specific requirements that ambulatory surgical centers do; for example, clinics need to construct hallways wide enough for two gurneys to pass each other, have a minimum number of janitorial closets, and be within a 30 miles of a hospital.

On the surface, the bill looks like a concerted effort to ensure that women who have complications with an abortion can get appropriate medical care. That is, it looks sincere until you realize that these requirements shutdown 18 of the 41 Texas abortion clinics in 2013, and, if the Supreme Court rules in favor of Hellerstedt, there will only be 12 abortion clinics left in Texas. How is this protecting women’s health if it prevents women from getting health care in the first place? This directly contradicts the “undue burden” standard of Planned Parenthood v. Casey, which prevents states from placing an undue burden on women who seek abortions by restricting their access to clinics. States can promote a pro-life stance, but ultimately they must offer abortion services; the HB2 law restricts thousands of women’s access to abortion by forcing women who live in rural areas-- and are often lower income than those in cities-- to travel hundreds of miles to the nearest clinic.

Supporters of the HB2 law argue that the laws protect women from unsafe procedures and bring up the case of Kermit Gosnell, a Pennsylvania physician who ran an unclean clinic and performed illegal late-term abortions for low income and minority women. What HB2 supporters fail to mention is that Gosnell’s clinic had not been inspected in almost 16 years. His grotesque clinic is not representative of abortion clinics, and shutting down safe clinics will actually lead to women seeking unsafe abortions from people like Gosnell out of desperation. 

It is true, all surgeries have complication risks, but not all surgeries have the same levels of risk. The HB2 law relies on people believing the myth that abortions are high-risk or dangerous, but in reality, abortions are extremely safe procedures; in fact, abortions are safer than colonoscopies or the procedure for removing wisdom teeth. It is nine times safer for a woman to get an abortion, whether it is a medical abortion or a surgical abortion, than to carry a pregnancy to term. Furthermore, nearly 90% of all abortions happen within the first 16 weeks of the pregnancy, and over half of all abortions take place during the first eight weeks, where there is no need for a surgical procedure. Justice Ginsburg questioned the necessity of having a surgical center at the abortion clinic: “[W]hat is the benefit of having an ambulatory surgical center to take two pills when there's no-- no surgical procedure at all involved?” The answer: there isn’t one. As she later pointed out, complications with a medical abortion do not happen in the actual clinics; women would experience complications later in the home. There are no advantages in requiring that clinics be within 30 miles of a hospital.

This case sets a precedent for the other 44 states, which are also implementing TRAP laws. If the court decides that the HB2 law is constitutional, more states will follow Texas’ example and impose these strict regulations. As a result, we will see the return of self-induced abortions and a decline in access to women’s health care in general. No matter how you look at it, it is clear that the HB2 law and all other TRAP laws need to go for the sake of women’s health.

- Jessica Steele