The Atlantic's James Fallows on how the fight over SCOTUS highlights the media's struggles to cover this political moment.
Guest Host: Indira Lakshmanan
The Supreme Court appeared sharply divided yesterday when it took up what many call the most important abortion case in years. At issue in Whole Women’s Health v. Hellerstedt: whether regulations on abortion providers in Texas impose an “undue burden” on a woman’s constitutional right to terminate a pregnancy. The outcome is far from clear. The death of Justice Antonin Scalia, who was a critic of the Roe v. Wade ruling that legalized abortion, shifts the balance of power on the court, and thrusts Justice Kennedy into the spotlight. Kennedy is the presumed swing vote in the case, which could end in a 4-4 tie. Both sides say the decision could have far-reaching consequences. The Supreme Court and a critical moment for the debate over abortion access in the U.S.
- Joan Biskupic Editor in charge for legal affairs, Reuters News; has written biographies of Sandra Day O'Connor and Antonin Scalia
- Elizabeth Nash Senior state issues associate, The Guttmacher Institute
- Julie Rovner Senior correspondent, Kaiser Health News; author of "Health Care Policy and Politics A-Z"
- John Seago Legislative director, Texas Right to Life
MS. INDIRA LAKSHMANANThanks for joining us. I'm Indira Lakshmanan sitting in for Diane Rehm. Yesterday the U.S. Supreme Court heard its first major abortion case in nearly a decade, with protestors and supporters chanting and cheering outside, the Court's eight justices, seated beside the late Justice Antonin Scalia's vacant chair, heard arguments in Whole Women's (sic) Health v. Hellerstedt.
MS. INDIRA LAKSHMANANThe case concerns a Texas law that places severe restrictions on abortion clinics, and which abortion rights advocates say puts an undue burden on a woman's legal right to end a pregnancy. Here with me in the studio to discuss yesterday's arguments and what the outcome of the case could mean in Texas and nationwide, Joan Biskupic of Reuters News Agency, Elizabeth Nash of the Guttmacher Institute, which compiles research and advocates for access to reproductive rights, and Julie Rovner of Kaiser Health News. Welcome to all of you.
MS. JOAN BISKUPICWhy thank you.
MS. JULIE ROVNERThank you.
MS. ELIZABETH NASHThank you so much.
LAKSHMANANAnd we'd like to hear from you, our listeners. You can call us anytime throughout the hour on 1-800-433-8850. You can send us an email to firstname.lastname@example.org, or you can connect with us on Facebook or Twitter. So, Joan Biskupic, let's start with you. Lay it out for us. You're a lawyer. What is this case about?
BISKUPICWell, it's good that you describe two important things here. First, the first time in nearly a decade. So very momentous case. But also now we're down to eight justices. So that's gonna effect the outcome. It -- the test here involves a 2013 law from Texas that required abortion -- physician to provide abortion to have admitting privileges at local hospitals and the clinics to meet a series of hospital grade standards.
BISKUPICThe lower court in this case, the U.S. Court of Appeals for the 5th Circuit, upheld the law. And a group of women's healthcare providers challenged it. So what we had were some very key arguments about whether these provisions were designed solely to shut down clinics, which the challengers say, or if the state can actually demonstrate that there were some legitimate reason for them. The State of Texas says it was to protect maternal health.
BISKUPICIt's interesting that you mentioned the absence of Antonin Scalia because what that means is that there are no longer five justices who would be inclined to uphold this law. We're not sure where Anthony Kennedy is, but without conservative Justice Antonin Scalia's vote, there is probably no way that we're gonna have an outright affirmation of this provision in Texas.
BISKUPICAll eyes were -- all eyes and ears were on Anthony Kennedy, our traditional swing-vote justice on abortion. He wavered certainly. He suggested in some of his questions that maybe the case should go back to the lower court for more information, more evidence about the clinic closings. But in the end he could become a fifth vote to strike down this law. He did not appear overtly inclined to do that, but when they go back and meet on Friday to discuss this case, he could tip the balance with the four liberal justices.
LAKSHMANANOkay. Julie, like Joan, you were also at the Court yesterday. What is each side arguing, specifically?
ROVNERWell, Texas is arguing that these laws are justified, as Joan said, to protect women's health. And what those who are challenging the law say is that there is not only no medical justification for these laws -- and I should mention that HB2 is actually bigger than these two provisions, but these are the…
LAKSHMANANMeaning the law.
ROVNERThe law, yes. I'm sorry. The Texas law actually was this huge omnibus bill. But these are the two provisions that are before the Court, the admitting privileges and the -- they're called ambulatory surgical center standard. So for where you go for outpatient surgery. And the idea is that abortion clinics would have to meet those standards and many of them can't for a variety of reasons. Not only is it very expensive, some of them, as was pointed out yesterday, they're -- literally the piece of land that they're on does not have a footprint big enough to expand to meet those standards.
ROVNERBut there are -- the plaintiffs and, in fact, with the medical community argue that there is not only no medical justification for these requirements, but that by closing down many clinics and making it harder for women to access abortion, they're actually putting women's health more at risk by pushing them from early abortions to later abortions. And that was actually something that Anthony Kennedy did mention during the arguments.
LAKSHMANANOkay. Well, that's an interesting twist on it, saying that not -- they're not protecting maternal health, they're endangering it. Elizabeth Nash, you have done a lot of research on this for many, many years. I think two decades. Just so we all understand, give us the background on this Texas law and what has happened in Texas as a result of it.
NASHSo, you know, where we saw the legislature in 2013 was really that everyone was expecting them to take on an abortion law of some sort. No one knew how wide or what scope of this law would be, but it was really known that this was gonna be an issue on the front burner in the legislature. And in the end, as we've been hearing from Joan and Julie, really, you know, this has been a saga. So in Texas, what we saw was, you know, the state didn't -- the legislature didn't take up the law in the regular session.
NASHThey had to go through two special sessions, a 10-hour filibuster by then Senator Wendy Davis, before the law, you know, got to the governor's desk and was immediately signed. And then the law, you know, took on this whole other aspect of implementation and court cases. There have been two court cases on this law. One court case has been -- is no longer in contention. But we obviously have this case at the Supreme Court. But what we saw happen ultimately with the admitting privilege requirement, which means that an abortion provider has to have admitting privileges at a hospital within 30 miles of the facility, the abortion facility.
NASHAs soon as that went into effect on November 1, 2013, so only a couple of months after the bill was signed, we started to see about half the clinics close. In 2011, there were over 40 clinics open in Texas. By the time the clinics closed due to this admitting privilege requirement, we're down to about 18. And as Julie was talking about, the ambulatory surgical center standards, if those go into effect, we're looking at under 10 abortion clinics open in the State of Texas. These clinics would be open in urban centers. So women who are in rural areas would have a very difficult time to access abortion services.3
NASHAnd we're also going to see demand that cannot be met. We'll see women being delayed an access in care because with eight clinics, and you have a population of about five million women of childbearing age -- not that all of these women are seeking abortion services, but they have the potential for an unintended pregnancy that needs an abortion, you can see where the demand would be greater than the ability to satisfy.
LAKSHMANANAll right. So you're pointing out that more than three-quarters of the current abortion clinics or the preexisting abortion clinics in Texas would be shut down as a result of these ambulatory facilities. That means women would have to travel, some women would have to travel as far as how far?
NASHHundreds of miles. Women would be going to New Mexico. They would be going, you know, out of state. Clearly, some women may be going as far as Florida, Denver. There are -- they are traveling vast distances at this point. And for some women in Texas, particularly women who have -- are of undocumented status, they may not even be able to get out of their county.
LAKSHMANANOkay. Well, I do want you to remind our listeners, Elizabeth, legal access to abortion is not a free for all in this country. There are already limits on when and how a woman can seek to end her pregnancy. So you talked about the waiting limits delaying that. I assume that would mean some women would no longer be eligible for a legal abortion. But tell us -- just give us a sort of quick bullet point overview of what limits exist with abortion now.
NASHSure. So, you know, over -- since Roe we've seen over a 1,000 abortion…
LAKSHMANANRoe v. Wade, the 1973 decision that legalized abortion.
NASHYes, sure, thank you. Thank you for explaining. But -- so since 1973 we've seen over 1,000 abortion restrictions and enacted at the state level. And 288 of them in the past five years. And these restrictions are across the country. So we see restrictions around waiting periods. We even see 72-hour waiting periods in some states that can delay women, not just the 72 hours, but perhaps longer depending on whether or not they can get time off of work.
NASHWe see restrictions on how abortion coverage may or may not be able to pay -- help you pay for your abortion. We see restrictions around -- these admitting privilege restrictions are actually in place in, right now, six states, including Texas. We see clinic regulations in about half of the states that are somewhat similar to the Texas law.
NASHWe see limits on methods of abortion, such as early medication abortion cannot be provided unless it meets very stringent, outdated standards in some states. So there are many, many types of restrictions that are in place in states that women and providers have to navigate in order to comply with the law.
ROVNERI was just gonna mention that the numbers that came up yesterday about how far women have to travel, it's that 900,000 women live further than 150 miles from a clinic. And 750,000 women in Texas live more 200 miles from a clinic. And that compared to before the law took effect, there were only 10,000 women who were more than 200 miles for a clinic. So it's already changed dramatically.
ROVNERAnd Texas, remember, is a vast state, particularly west Texas. Fairly sparsely populated and so it's -- if some of these clinics close, women will have to travel, you know, and that -- this is the question for the Court to ballot, is that long distance a "undue burden" under which it would then not be allowed under current Supreme Court precedent.
LAKSHMANANWell, I want to bring us back to that legal question, Joan. Explain to us this concept of undue burden that dates to a 1992 Supreme Court decision and why it's so important.
BISKUPICIt is. In 1992 in a case from Pennsylvania, the Supreme Court, by a narrow 5-4 vote, affirmed Roe v. Wade, but altered the standard by which judges would asses these kinds of regulations and said this is the test. You have to look to see if there's an undue burden on the woman. And then they described that as a regulation that would put a substantial obstacle in her path as she wanted to obtain the procedure, to end her pregnancy. So a very important question emerged pretty quickly yesterday about the remaining clinics.
BISKUPICWould they have the capacity to handle the women in the State of Texas who might want to get an abortion and had -- used to go to one of the other ones? And there was a lot of dispute. In fact, that's why Justice Kennedy seemed concerned about what was actually in this record. The four liberal justices really believe outright that there is an undue burden. They suggested that for -- by their questions, they suggested it by their talk about the distances, but that's something that stuck in the craw of Justice Kennedy.
LAKSHMANANAll right. We will talk more about that when we come back. Right now we're gonna take a short break. And when we're back, more about the abortion case before the Supreme Court. Stay with us.
LAKSHMANANWelcome back. I'm Indira Lakshmanan sitting in for Diane Rehm. This hour, we're talking about abortion rights and specifically the case that is currently before the Supreme Court that could be the most consequential one for access to abortion in the last decade.
LAKSHMANANJoining me in studio for the hour: Joan Biskupic, chief editor for legal affairs at Reuters News. She's written biographies of Sandra Day O'Connor and Antonin Scalia, the recently deceased justice who was a really stalwart critic of abortion rights. Elizabeth Nash, senior associate covering states issues at the Guttmacher Institute, a reproductive rights research and advocacy organization. And Julie Rovner, senior correspondent at Kaiser Health News and author of "Health Care Policy and Politics A-Z." But joining us now by phone from the Capitol, John Seago, legislative director for Texas Right to Life, joining us from Texas. Welcome, John.
MR. JOHN SEAGOYeah. Thanks for having me.
LAKSHMANANSo, John, Texas Right to Life filed a friend of the court brief in this case. What is your position and why?
SEAGOYeah. Texas Right to Life, my organization has been involved with House Bill 2 from before day one. We were involved in that legislative session that you were talking about earlier, where these policies actually were filed as separate bills. And we worked with the legislature in those and then in House Bill 2. So we've been along, you know, this lawsuit since the beginning. And our position is that the House Bill 2 is a rational means of furthering a legitimate state interest. And we think that the Supreme Court ultimately should uphold these medical standards.
LAKSHMANANAnd specifically, though, you started your advocacy in this case because of Kermit Gosnell. Tell us about him.
SEAGOSo, in 2013, we were working in a legislative session and there has always been this conversation about regulations. That's one type of policy that comes up related to abortion, in addition to the other options of informed consent, models like that. And there was always this conversation of some loopholes that the state knew of in their laws about inspections, about reports. But in light of the Kermit Gosnell case, we had legislators...
LAKSHMANANAnd remind us who he is, remind listeners.
SEAGOI'm sorry, yeah. So an abortionist who was actually found guilty of not only, you know, homicide, but actually just, there was kind of the scandal of it was, showing how low of medical standards there were in his abortion clinic.
SEAGOIn Philadelphia, yes. And this was documented in a grand jury report that was very effective in the legislature -- the Texas legislature, reading that grand jury report looking at how some common sense safety standards would have saved at least the lives of one patient -- one woman who went into his clinic and did pass away. And we can talk about that...
LAKSHMANANWell, John, tell us what was your impression of what happened in the court yesterday.
SEAGOWell, it is definitely a historical moment, as your other guests have noted. It's an important kind of decision the court has before them. And it really is deeper than whether Texas gets to keep its law or not. I mean, what we saw was a deep divide in the court of four justices trying to take the case to redefine the roll of the Supreme Court, really, to make it the Supreme Court's jurisdiction whether they can determine if a state is making a medically prudent decision or not. You saw those in the four liberal justices. And then you saw, you know, two justices openly recommending that the court stays within the bounds of past court precedents, that they only look at if there was a rational means for furthering a legitimate state interest.
SEAGOSo two very stark differences and -- on the courts outspoken yesterday. And hopefully, you know, that's going to be the crux of which direction the court goes in.
LAKSHMANANAll right. Well, let's talk about the key man who everyone is watching, because he's the one person who we don't know how he's going to vote, Justice Anthony Kennedy. What could you gather -- you were in the courtroom -- from what you heard, what's your sense of how he's leaning?
LAKSHMANANRight. So I don't think he showed any cards. He did ask questions on both of those sides I was talking about. He did engage a little bit on the medical side. Whether, you know, he asked some questions specifically about whether Texas was making a medical statement about what types of abortions, what procedure they would like to happen more than others. And so he asked about that. But he also asked about what specifically the state -- what specific criteria the state wanted the court to use to establish if they were acting in a rational way and -- in passing this law. So I think he definitely went to both questions -- both sides of the question there.
SEAGOAnd, you know, as you mentioned earlier in the show, he did kind of drop a bomb that a lot of reporters are jumping on, is he did suggest that maybe this case needs to be sent back to a lower case -- lower court for further evidence.
LAKSHMANANWell, John Seago, what do you think this case could mean more broadly, not only in the Fifth Circuit, which includes Texas and parts of Louisiana and Mississippi, but elsewhere in the United States?
SEAGOWell one of the reasons this case has gained so much attention is because before the death of Justice Scalia, it did have the capacity to clarify an extremely important question -- What exactly is an undue burden? You know, undue burden is a legal test that is thrown against pro-life laws all around the country. Anytime a pro-life state seeks to regulate abortion in any way -- informed consent, regulating late-term abortions, cutting them off at a specific gestational period, or a regulations bill like House Bill 2 -- our opponents go to court and say that this pro-life law is an undue burden on a woman's access to abortion. And it's never been defined.
SEAGOSo we were very hopeful that this case would clear that up and give each state clear guidelines as to what laws they can pass to further the state interests of protecting the women's health who are going to seek elective abortions.
LAKSHMANANOkay. John Seago of Texas Right to Life. Stay with us on the line. I'd like to turn the conversation back to Julie now, at the moment. Julie, what do you see as being at stake for Texas, specifically, if the decision goes four-four, versus if it goes five-three or gets sent back to the lower court, as John was saying might happen? What's at stake for Texas?
ROVNERYeah. And it differs, depending on what happens. If the court ties four-four, then the Appeals Court ruling stands, which allowed the law to proceed or allow these two provisions to proceed, and that would result in basically in Texas having nine abortion clinics left that meet those ambulatory surgical center standards. And then there is the question of, you know, as it's -- they've discussed capacity. If the court sends it back to the lower court, one would presume that the stay remains in effect on those ASC standards, so that we would have the 20 abortion clinics that are currently open in Texas. And then it might take a year or possibly two for it to come back.
ROVNERThe court -- something we haven't mentioned, the court could hold it over and ask for it to be reargued. The problem...
LAKSHMANANOnce it has nine justices sitting?
ROVNERRight, once it -- yes. And this is, people don't remember, that's what happened in Roe v. Wade. There were actually two vacancies when Roe v. Wade was first argued in 1970 -- I guess it must have been 1971, because then it was argued again in 1972 and that decision came down in January of 1973. So that was actually a case...
ROVNERYeah, that was...
LAKSHMANANAlthough -- a good piece of history for us. But the thing is that if President Obama's not able to name another Supreme Court Justice, then we're talking about two terms with only eight people on the court.
LAKSHMANANSo it would be next year, there would still be only eight people.
ROVNERThat's right. Which is why I think a lot of people suspect that that's probably not what the court is going to do. But they could. So, you know, the options are, Kennedy joins with the liberals and there's a five-three ruling striking down the law.
LAKSHMANANAs being an undue burden, preventing...
ROVNERAs being an undue burden. There could be a four-four tie. Or they could send it back to the lower court.
LAKSHMANANJoan, how is the rest of the country going to be affected, depending on this decision?
BISKUPICWell, the standard that the justices use, if they actually reach the merit, is going to be critical for every place in America. The Fifth Circuit gave great deference to the Texas legislature in this case, in contrast to, for example, what the Seventh Circuit did for a Wisconsin law. And it goes to just what John was saying and what Julie and Elizabeth had been referring to before about how to test the undue burden standard. Lower courts are divided on what the challengers have to show and what the -- a state defending a law would have to show.
BISKUPICAnd just -- Chief Justice Roberts said at one point -- something that seemed incredibly sympathetic to legislators -- he said, what does it matter what their purpose was, as long as they, you know, they've got some grounds for maternal health, what does it matter what their purpose was? For example, if their purpose was to actually shut down clinics, if they can -- if they have good reason to believe that it also would help maternal health. Why even go to the purpose? Whereas Justice Kennedy, at one point, very subtly but, you know, some of us, you know, our ears pricked up, he said, well what about balancing the state's interest?
BISKUPICNow the challengers say it's very important to look at both pieces. Because if there is -- if there is arguably some health interest, it might be overshadowed by the fact that the legislature really had a different idea here. And the idea was to stop abortions.
LAKSHMANANYou know, this is a really interesting thing that illuminates the way that the anti-abortion movement has really changed the way it has tried to fight abortion rights. Because it used to be sort of attacking the woman, picketing clinics, you know, focusing on individuals in that way. And now, Elizabeth, tell us -- it seems as if the trend is more toward saying, no, we're protecting the woman. We're protecting women's health. We're protecting women's rights. And looking at in a different way, almost more paternalistic and less about the fetus. Sort of focusing less on the fetus and more on the woman herself.
NASHWell, it -- and, in fact, really focusing on the providers, right? So, you know, what we were seeing in the '80s and into the '90s quite a bit were these regulations around abortion counseling, waiting periods, those types of restrictions that were based around the woman and trying to make the woman change her mind in some way, right? Steer her into continuing her pregnancy. And now what we've seen -- but we saw that that didn't really have an impact. Women were continuing to access abortion services.
BISKUPICAlso, most of those were struck down in the 1980s.
BISKUPICThere were a lot of efforts along this line that the Supreme Court said -- the Supreme Court with a different makeup said, no, you can't do this.
NASHYes. But, you know, finally in 1992 in Casey, you know, what we saw were that those restrictions were upheld. And so we've seen them flourish to some degree throughout the '90s. And then...
LAKSHMANANSo the strategy has been very effective for the anti-abortion movement.
NASHWell, no, actually that wasn't that effective. Because women were continuing to access abortion services, despite...
LAKSHMANANI'm sorry. I meant more recently.
NASHOh, yes. More recently, you know, the idea has turned to closing clinics. Because if there is no clinic, then the woman cannot access services. And -- or she's forced to travel further or delay the abortion because she has to travel further. So the idea really now is at the provider level versus at the woman level.
LAKSHMANANI'm Indira Lakshmanan and you're listening to "The Diane Rehm Show." John, can you respond to what Elizabeth said about how the anti-abortion movement has sort of changed its approach.
SEAGOYeah. Absolutely. I would categorically disagree. I do not think that the movement has changed its approach. I think that you're seeing different successes -- pro-life bills being passed. So it might, you know, and those get more attention. But look at House Bill 2 itself. House Bill 2 itself has part of the law is the preborn pain section that focuses on the preborn child. It is not all about regulations. So, you know, you're looking at these informed consent legislation, you look at the new trend right now, and states are passing this dismemberment abortion ban. I don't think it's a black and white kind of distinction that they've changed a strategy.
SEAGOThe pro-life conviction that is leading us to pass bills that would stop abortion on a preborn child that can feel pain or stop a dismemberment abortion in our state, that same principle of valuing human life is what has motivated between -- I'm sorry, behind these medical standards, raising these medical standards. The Texas legislature was pro life and valuing these lives that were being lost and these lives that were being endangered in abortion clinics. And that same pro-life principle that is against abortion is actually to protect these women too. So I don't think there's a major shift in principle or in strategy. States today are still passing, even this last week, still hearing and passing bills that are focusing on protecting and valuing that preborn life.
LAKSHMANANAll right. Let's go to the calls. We have a caller, Margaret, from Oklahoma City, Okla. Margaret, you're on the air.
MARGARETI actually had two questions. The first question is, can you guys elaborate on what it means for a doctor at an abortion clinic to have to have admitting rights or admitting privileges. You've talked about that a little bit. Can you just elaborate on that?
LAKSHMANANOkay. And you said you had a second question as well?
MARGARETYeah. The second question is, what kind of evidence has the State of Texas provided for this case to show that there's enough either deaths or health issues to women that are seeking these abortions that these restrictions need to be in place?
LAKSHMANANOkay. Thank you, Margaret. Julie, can you take the first question about what it means for a doctor to have admitting privileges.
ROVNERYes. On admitting privileges, the states that are passing these laws say that it's basically a quality check on these doctors. That hospitals in assessing whether or not a doctor is qualified and of high enough quality to be able to admit patients to the hospital. In practice, though, that's not necessarily how hospitals decide admitting privileges. They often decide admitting privileges by, you know, is the doctor going to actually practice in the hospital and bring patients? And doctors who do abortions in clinics don't tend to have hospital patients because abortion is an extremely safe procedure and there are very few complications where patients end up in the hospital.
ROVNERSo these are not doctors who are going to basically bring business to the hospital. So many -- in many cases, they can't get admitting privileges. Or, in other cases, doctors travel in to do the abortions and so they actually don't live locally. An so the local hospital isn't going to give them admitting privileges. But there are lots of reasons why doctors can't get admitting privileges that have nothing to do with the quality of the doctor involved. So this has turned out to be an extremely complicated issue.
LAKSHMANANAll right. Joan, what about the part -- the type of evidence that Texas has shown that there are enough problems with abortions at these sites to merit this change?
BISKUPICWell there is no broad evidence like that put in the record. And that came up a bit yesterday, some anecdotal things. But the major medical associations have all said, this is not necessary. So that goes to -- that goes in part to, you know, half the equation of why do these -- in fact, Justice Ginsburg, at one point said -- with her voice as loud as we've heard it in many, many months -- why -- what happened? Why do you have to do this? What has changed? There are already so many safeguards. And that's really at issue. The Texas solicitor general who argued for the state said, well, they didn't need to defend these regulations in this way. It's up to the challengers to offer the evidence about why these weren't necessary.
BISKUPICSo he said, you know, the burden of proof wasn't on them during any of the lower court hearings. But that's something that some of the justices latched onto. Also, Samuel Alito referred to something that, again, was not part of the formal record, saying, well wasn't there a single clinic that had some dilapidated conditions and rats were coming in through holes and there weren't sterilized equipment? He said that. But the contrary view was voiced again by Justices Ginsburg and the other liberals, saying, well aren't these just incidents that already have violations that could be corrected one-on-one? You don't need a sweeping law to suddenly change the scene.
LAKSHMANANHmm. Elizabeth, you were going to jump in, quickly.
NASHAnd the one thing I was going to add was that it's not as though Texas had not regulated clinics before. They had been regulating clinics since the late 1980s. And there were very stringent requirements already in place that the health department was working with abortion clinics to handle safety.
LAKSHMANANAll right. We're going to be going to a break. But I just wanted to say that John had referred earlier to one woman who had almost died, he said. So that -- I don't know if that's something that had been presented as part of the evidence. But we are going to take a short break now. And when we come back, we'll get more of your calls and your questions. Stay with us.
LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. Joining me here in the studio to talk about the critical abortion case that is before the Supreme Court right now. Joan Biskupic, Chief Editor for Legal Affairs at Reuters News. Elizabeth Nash, Senior Associate at the Guttmacher Institute, which is Reproductive Rights Research and Advocacy Organization. Julie Rovner, Senior Correspondent at Kaiser Health News and by phone, John Seago, Legislative Director of Texas Right to Life. They are all here in Washington and all watching the case at the Supreme Court in the courtroom yesterday.
LAKSHMANANSo, I want to read a couple of emails that have come in. This one is from Donna in Uxbridge, Massachusetts, who says, closing abortion clinics does not stop abortions. It just makes women who are determined to terminate an unwanted pregnancy go to illegal, unsafe locations either in the US or Mexico. These are mostly women who don’t have the financial resources for other choices. The Texas law endangers women's health. And a similar email from Christine who says, please ask John from Texas Right to Life to address the problem of shifting abortion procedures from safe and legal to unsafe and illegal. Does he deny that this will indeed happen? John.
SEAGOWell, yeah, this is a common claim. And this is actually, we saw a study that came out that argued that there was an increase in self abortions because of House Bill 2, because of higher standards. And in the amicus brief that were filed, that study was completely rebutted. It was terrible methodology, was actually based on hearsay. And one of the questions was do you -- have you ever committed, self, done a self-committed abortion? You know, do you have friends or do you think your friends have? It was a terrible study, but this is the claim that is made.
SEAGOAnd the Texas -- and this is what the state was arguing is that Texas is acting on a legitimate state interest to raise safety standards. And illegal activity is, not, you don't fail to pass a law because you're worried people are going to break the law. There's this legitimate state interest and as the state was arguing in the capacity form, there will still be access to elective abortions in Texas after House Bill 2 is fully enforced.
LAKSHMANANI mean, John, you say that the study was flawed, but we know from the historical record that before Roe v. Wade when abortion was illegal, women were dying from unsafe and illegal abortions. Elizabeth, tell us a little bit about that history.
NASHWell, certainly, you know, when, when abortion was illegal, women were seeking abortions outside of the medical system. They were seeking abortions on their own without medical guidance. And what we found, very quickly, was that after abortion was legalized in 1973, that, you know, you started to see a huge decline in women going to hospitals because of bad outcomes from an abortion. Women were having abortions safely and they were certainly having no repercussions from those abortions. So, we know that legalization's incredibly important to ensuring that abortion's provided safely by trained providers.
LAKSHMANANI want to bring up the issue of safety. We have an email here from a listener, David, in Grand Rapids, Michigan, who says, is Texas so concerned for safety that it's also considering the same requirements for colonoscopies, wisdom tooth extractions, and vasectomies? All of which are performed in a doctor's office or clinic and appear to be more dangerous to one's health. Julie, I was listening to some of the arguments yesterday and heard that no American Medical Association thinks these restrictions are needed.
LAKSHMANANAnd that there are no such restrictions for colonoscopies and for example liposuction. Which have, according to some of the justices, a higher risk of complications.
ROVNERThat's right. This came up repeatedly, that there are no similar standards for, and you know, particularly colonoscopy, liposuction, things that have higher rates of complications than does abortion. And they pummeled the Texas Solicitor General about this and he finally -- and, you know, they said well, why aren't you, you know, why isn't Texas regulating these other things, too, to the extent that they're regulating abortion? And he finally said that, you know, that the State Legislature acts according to what the public wants. That's essentially where he landed on that, but it did come up.
ROVNERIf I could go back for a second to the question about changing and setting aside the -- moving from legal to illegal abortion and I agree that the evidence there is extremely sketchy. One of the things that Justice Kennedy brought up yesterday is because this law, among other things, makes it more difficult to get a medical abortion, where you take pills, that you actually have to go to an ambulatory surgical center to take the pills in the presence of a doctor. And because of the way the law is structured there, it requires four separate visits. And so, as Justice Kennedy pointed out, whereas nationally, there's a move towards more women using medical abortion as opposed to surgical, in Texas...
LAKSHMANANAnd by medical abortion, you mean things like…
LAKSHMANAN...the Plan B pill.
LAKSHMANANNot Plan B.
ROVNERPlan B is a contraceptive.
ROVNERThis is mifeprex, mifepristone or ru486. That's the abortion pill. Plan B is -- that's a whole different fight. But the actual abortion pill, which is, which did not used to have to require that many visits. So, it's much more inconvenient now to have a medical abortion in Texas. So, women are moving more towards surgical abortions and Kennedy, you know, wondered, aloud, if that really is better for the health of the woman to have a surgical abortion as opposed to a medical abortion.
BISKUPICI was just gonna say, in terms of the Justices focus on colonoscopies and liposuction, even Justice Breyer said, what about even going to the dentist? The one thing that is important here is that the Supreme Court has said that abortion is different. So, the Court has allowed states to regulate abortion in a way that they might not for other procedures. Which is why, as Elizabeth referred to earlier, there are some waiting periods that have stood. There have been regulations, for example, for parental notification or judicial bypass for that.
BISKUPICSo, those things can be imposed in a way they might not be on another outpatient service that doesn't involve a fetus, but the key question is does that regulation then put an undue burden on a woman's Constitutional right? We have a Constitutional right here just as much as we also have a fetus here in a way that's different from these other procedures. So, is there an undue burden even though states might be able to regulate it?
LAKSHMANANElizabeth, let's step back here for a second. You gave us a little bit of overview about how what's happening in Texas is a trend in access to abortion nationwide. Give us the exact numbers. How many women in the 1980s had access to what number of clinics and what are we down to now?
NASHYeah, sure. So, really, what we are talking about it access to clinics peaked in 1982. We had about...
LAKSHMANANSo, less than 10 years after Roe v. Wade.
NASH...yes. We had about 2900 clinics in 1982, or abortion providers, really. That includes some hospitals as well as clinics. And the number has been declining ever since, so now we're down to about 1700 providers, which includes a number of hospitals. And currently. And so, really, the rate also peaked -- the number of abortions also peaked at around 1981, not surprisingly. And has been declining ever since. And so, right now, we're looking at about a million abortions a year and you have to put that in perspective a little bit.
NASHWe have about six million pregnancies a year. And so, about a million abortions a year means that three in 10 women will have an abortion in their lifetime. So this is very common. It is part of healthcare, it's part of reproductive healthcare, and it's part of how women deal with unintended pregnancy.
LAKSHMANANAll right, let's go to the phones. Lindsay, in Sarasota, Florida. Go ahead. You're on the air.
LINDSAYI just wanted to make a comment about my own experience, and I know a lot of times, it's pointed out as being anecdotal evidence. But I am a real who -- I have children now. And I did have an abortion, actually, I had two abortions in my life. I had one, a medical abortion and I had one, I guess, traditional abortion, I guess you would call it. One with pills and one was administered in a clinic, Planned Parenthood. Unfortunately, I had a very bad experience. I -- the facility was not equipped to handle the side effects that I -- that occurred after administering the medication they gave me to make me not feel the abortion, I guess it was to numb the pain or make me somewhat unaware.
LAKSHMANANWhat sort of side effects did you have?
LINDSAYWell, my blood pressure dropped extremely low and I started going into shock. And I just remember having, you know, just becoming so aware of the response around me. There seemed to be no procedure in place. I mean, I sat there for probably, I mean, it feels like forever when you're in that position, when you can't breathe. You start becoming, you know, you're scared and of course, already being in a clinic, I was younger than I am now, I was in my 20s. You're already uncomfortable. Having an abortion, you know, is a very uncomfortable process, no matter how -- more acceptable it's become, it just is uncomfortable.
LINDSAYAnd it's, you know, having a medical complication where the staff that's there did not, really did not know what to do. Which tells me that perhaps it wasn't very common. Maybe it is as rare as it's being stated. But the bottom line is that having medical access was necessary for me. And you know, the negative side effects that I suffered, I'm not alone. I don't know what the, you know, what the statistics are. I know that women are not -- I don't want to be candid about this, to be candid with you.
LINDSAYI'm calling because I'm hopeful this will enlighten other people, but I know for a fact, it took me a lot of years to talk about abortion candidly, because nobody wants to talk about the fact that they've had an abortion. At least, I don't.
LAKSHMANANWell, Lindsay, thank you so much for sharing your experience. I'm so sorry, both that you had to go through this and that you had this, you know, that you had to go through it in the first place and that you had this very scary medical situation. But are you ultimately coming down on the side that you think you should have had access to the abortion, despite the fact that there were problems in this clinic?
LINDSAYWell honestly, what upsets me the most now, being a mother now, what upsets me the most is how sterile the environment was. And I'm not talking about medically sterile, I'm talking about the fact that when I had the ultrasound before the abortion, I didn't see the baby's heartbeat. They put a cloth up to isolate me from those photos.
LINDSAYAnd maybe that would have been a difference for me.
LINDSAYNobody sat down and said, you know, is this really what you want to do? Is this a last resort? It was really like being in, you know, a bunch of women there, you know, nobody was there to council. And I wish now, being candid, that I would have never made this decision to do it.
LINDSAYBecause I'm a mother now. I realize that it wasn't the right decision for my life.
LAKSHMANANOkay, well, Lindsay, thank you so much. A lot of, a lot of issues packed up in that story she shared with us. Julie.
ROVNERYeah, I mean, I'm actually more surprised at the lack of counseling than actually at there being a medical complication. There are complications. There are complications when you get, you know, rare complications when you have your wisdom teeth out. You know, or as we pointed out, even more complications with outpatient procedures like colonoscopy. I mean, things do happen. In every state, there are regulations, even before these admitting privileges laws, most abortion providers are required to have sort of a relationship with a hospital, not necessarily the doctors themselves, but to have, you know, to have some procedures in place for when there is a complication. Because complications do happen.
LAKSHMANANI'm Indira Lakshmanan and you're listening to "The Diane Rehm Show." All right, let's take one more quick call from Sasha in Tulsa, Oklahoma. Go ahead, Sasha.
SASHAHi, so, I'm from Texas, even though I'm in Oklahoma right now. I'm a physician. These laws have been particularly frustrating but they have no medical basis. Abortion is safe. There are complications, as the previous caller mentioned, but obviously, having an abortion is safer than carrying a pregnancy forward. But one issue that I never hear talked about much is that I always an issue of religious freedom. I know that not all pro-life groups are based on religion, but there are major world religions which do not have a moral problem with abortion.
LAKSHMANANOkay, so thank you so much, Sasha. She's making a point about personal liberty, whether you call it religious freedom or personal liberty. Joan, I want to ask you about this because I read a column by Harvard Law Professor Noah Feldman in Bloomberg View saying that Justice Kennedy's legacy is built on this 1992 Planned Parenthood v. Casey ruling in which he laid out his own vision of autonomy and dignity in peoples' private lives, which was later what was built on for the gay rights movement. And that it is unlikely that he would want to undo that with this case. Do you agree that ultimately he will vote to overturn the Texas ruling?
BISKUPICI agree with part of that column, but I don't know if it leads to overturning the Texas law. I think that if you put in Justice Kennedy and the word dignity, you find lots and lots of matches. It's very -- personal dignity and autonomy is very important to Justice Kennedy. He was as the columnist noted, the critical vote in 1992 to uphold Roe v. Wade. In fact, that vote caused a significant breach in his relationship with Justice Scalia. It was a very hard decision for him and he has not gone back from that.
BISKUPICSo, Justice Kennedy's legacy will likely be that vote, as well as his critical fifth vote to affirm gay marriage in America. But, I don't know if that will necessarily lead, in this case, to his striking down the Texas law. In fact, from the signals he gave on the bench yesterday, he wasn't ready to strike them down right now, to be the fifth vote. He could be. As I said, they will be discussing it in their private conference on Friday. But I do not think he will ever go backwards on the fundamental right to abortion.
ROVNERI think also, it's important to remember that between Casey, which was 1992 and now, there was a case that, in fact, the last big abortion case on the federal partial birth abortion ban, where Justice Kennedy said, significantly different things than he'd said in Casey about abortion and women's rights to abortion. Which is why a lot of people, a lot of people on the abortion rights side have very much not been counting on Justice Kennedy to necessarily take their side.
LAKSHMANANJohn, jump in here. I want to hear from you, your comments on whether you think this case is going to have national reverberations, regardless of which way it's decided.
SEAGOI think it will. Absolutely. And I did want to address just something that was mentioned by your last caller, is the medical evidence. And we never got back to that issue. Is, there was medical evidence. The legislators themselves filed an amicus brief, 121 legislators, explaining which doctors they were listening to in testimony, what studies they were looking at. So, that is in the record. Now, it's not put in by the state, because the state is arguing, fundamentally, that we should not redefine the role of the Supreme Court.
SEAGOThe Supreme Court should not be the final authority of whether pro-life states are making medically prudent decisions. They're supposed to look at the state interest question and whether they were rational in making that. And I think Texas, in this case, has proven that they were looking at benefits. And that actually came up yesterday is that Keller even pointed out the plaintiff's own witnesses, at lower courts, have acknowledged there is some medical benefit to these standards. And they just say it's not a big enough medical benefit to close down abortion clinics.
SEAGOAnd so, there's definitely, you know, admitted on both sides, in court at least, that there is some medical benefit. It's just a question of what -- how far they can go in enforcing these higher medical standards.
LAKSHMANANElizabeth, quick last thoughts on what you think the outcome is going to be and its impact.
NASHWell, really, no matter what happens, this isn't going to be the end. If we get a standard that explains a little more about what undue burden really means, there are still going to be battles at the state level. And right now, where we are, we are seeing legislatures pass many, many restrictions on abortion.
LAKSHMANANAll right, that was Elizabeth Nash, Senior Associate at the Guttmacher Institute a reproductive rights, research and advocacy organization. Before her, John Seago, Legislative Director of Texas Right to Life. And also joining us for the hour, Joan Biskupic of Reuters News and Julie Rovner of Kaiser Health News. Thank you to all four of you for joining us. And thank you to all of our listeners for tuning in. I'm Indira Lakshmanan, sitting in for Diane Rehm. Thanks for listening.
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