On Monday, the U.S. Supreme Court issued the most important women’s reproductive rights ruling since 1992.
The 5-3 decision in Whole Woman’s Health v Hellerstedt was a tremendous one and the American Civil Liberties Union of Kansas celebrated the ruling, while realizing there are still many battles to come.
Texas women faced extreme obstacles in their efforts to get legal and safe abortions. No woman should face onerous requirements to get an abortion in their state.
One provision of the Texas law required doctors at clinics to have admitting privileges to a hospital within 30 miles. The complication rate from abortions, however, is so low that doctors often cannot admit enough patients yearly to keep or need admitting privileges.
Kansas has a similar admitting privilege law, which is under legal challenge. In 2011, courts stopped the implementation of the admitting privilege law in Kansas.
The Supreme Court on Monday also struck down a second provision in the Texas law that mandated that clinics upgrade their facilities to become “ambulatory surgical centers.” Liposuctions and colonoscopies have more complications than medical abortions, but Texas lawmakers didn’t impose higher medical standards on those riskier procedures.
When the law was passed in 2013, Texas had 42 clinics providing abortion services. That number plunged to 19 when the law was implemented. It was expected to fall to as low as 10 or less if the high court had upheld the law.
Before the court’s ruling, women in Texas had to wait three weeks for an appointment or go out of state to get a safe and legal abortion because of the limited number of clinics in a geographically large state.
Once again, Justice Anthony Kennedy played a pivotal role in determining the court’s direction as he did in Planned Parenthood v Casey in 1992. In that case, the court reaffirmed the right to an abortion that was established in Roe v Wade, and said a woman could not face undue interference from the state in getting an abortion.
The undue burden on women remains a key aspect of litigation over abortions.
The court has just eight justices after
the death of Justice Antonin Scalia in February, but that didn’t make a difference in Whole Woman.
Across the country lawmakers have passed over 300 restrictions aimed at limiting a woman’s access to abortion. A woman in Kansas must receive state-mandated counseling and then wait 24 hours before the procedure. The same woman is forced to pay out of pocket as private insurers are blocked from abortion care services. Meanwhile in neighboring Colorado, for example, none of these restrictions exist.
Kansas is at the front line of harsh restrictions. Over the last five years, Kansas lawmakers have been engaged in an unprecedented, extremist campaign to make it hard for a woman to receive safe, legal reproductive healthcare. With just three abortion clinics in Kansas, about 75 percent of Kansas women live in a county without an abortion clinic.
The ACLU believes Gov. Sam Brownback and legislators have imposed abortion restrictions that will not pass constitutional muster.
Medical experts like the American College of Obstetricians and Gynecologists, a national nonprofit educational and professional organization, have asked the courts to throw out the Kansas law that was passed in 2011. The organization, whose opinion was given considerable weight in Whole Woman, says Kansas is interfering in patient care without a substantial public health justification.
“The patient-physician relationship is essential to the provision of safe and quality medical care and should be protected from unnecessary governmental intrusion,” the organization said in its pleadings. “(The Act) unduly interferes with the patient-physician relationship by seeking to criminally sanction physicians for exercising their best medical judgement in treating their patients.”
Kansas lawmakers had no medical justification for the act, and in most cases would bar women in Kansas from getting the safest and most common method of second-trimester abortion.
“The act also imposes grave consequences for physicians who do not comply, setting a dangerous precedent for legislative interference into the patient-physician relationship,” the ACOG pleading states. “The act’s Draconian measures create a conflict between a physician’s interest in avoiding criminal and civil liability, on the one hand, and a physician’s duties to his or her patient, on the other.”
The Kansas Supreme Court like the U.S. Supreme Court did this week should affirm that women have the constitutional right to make decisions about her own healthcare and cannot face an undue burden in seeking a safe and legal abortion.
Abortion is a medical and deeply personal decision best left to a woman, her family and her doctor. Kansas should stop intimidating and harassing women and doctors, and stop wasting time and taxpayer money on pursuing restrictions that won’t pass constitutional muster.
It is time for Kansas to repeal its dangerous, unnecessary, and unconstitutional restrictions on women’s healthcare. Lawmakers do not belong in the exam room.
— DeAnn Smith, director of communications and outreach for the ACLU of Kansas