Whole Woman’s Health v. Hellerstedt

Moira Donegan

In Texas, ‘ambulatory surgical centers’ – outpatient clinics for medical procedures that don’t require an overnight stay – aren't allowed to have ceiling fans. State law requires them to have elaborate ventilation systems, the capacity to house and transmit medical gases, water coolers in all waiting areas and adequate off-street parking. There needs to be an intercom system that can function in the event of a power cut, and devices for handling ‘flammable germicide’. If the facility has more than one floor, it must have a lift, and the lift needs to be large enough to accommodate a gurney. The hallways have to be wide enough to accommodate at least one gurney, if not two, and laid out in such a way as to allow for one-way traffic of people and gurneys throughout the centre.

In July 2013, Texas passed a law known as House Bill 2, which required all abortion clinics to meet the standards of an ambulatory surgical center, and all doctors who carry out abortions to have 'active admitting privileges' at a hospital within 30 miles. The requirements called for major renovations at most clinics, as well as security and staffing upgrades that most of them could not afford; buildings would have had to be razed and rebuilt, tens of thousands of dollars would have had to be invested in technology that abortion clinics would never need to use. After the law’s first provisions went into effect in October 2013, 22 of the state’s 41 abortion clinics shut down. If all of the requirements had become realities, there would have been only nine clinics left, clustered in metropolitan areas across a mostly rural state with a land area twice that of Germany and a population of more than 27 million.

The bill was the subject of elaborate political theatre in the Texas state legislature. State senator Wendy Davis, of Fort Worth, tried to block the bill by filibustering for 11 hours in bright pink trainers. After the provisions passed, anti-abortion politicians went fundraising in their districts with the claim that they had defended the rights of the unborn; the shuttered clinics organised and sued; a protracted legal battle began over whether the bill was constitutional; and getting an abortion in Texas became more difficult than ever.

Before the United States Supreme Court struck down House Bill 2 on 27 June, the arguments in favour of the bill were marked by the kind of politics that has been called ‘post-factual’. The bill’s supporters insisted that requiring abortion clinics to meet higher standards would make abortions safer. It seems an anodyne enough claim. Women’s health has been a plank of the pro-choice movement for decades, and reasonable people could agree that making abortions safer is a good thing, whether or not they found abortion morally acceptable. But the reasoning crumbles when you look more closely at the law itself.

Many first-trimester abortions are non-invasive: why would an abortion clinic need to widen its hallways to accommodate gurneys when its patients leave on foot? There were no comparable laws in Texas for facilities where less stigmatised but more dangerous procedures, such as liposuction – or, for that matter, childbirth – take place. In the Supreme Court case, Whole Woman’s Health v. Hellerstedt, the bill's opponents asked why the state held women’s healthcare providers to a higher standard when they carried out abortions, but not when they carried out, say, colonoscopies. Health was in the letter of the law, but not in its spirit; the House Bill 2 supporters knew perfectly well that it effectively banned abortion in Texas, and their claims to be acting in women's interests were bad faith efforts to maintain plausible deniability.

The Supreme Court agreed that the new standards represented an undue burden on a woman’s right to an abortion. That decision makes the constitutional right a little more complete, and the citizenship of American women a little less partial, a little less conditional, a little less contingent on local attitudes. The decision is also a blow to the post-factual political strategy of eroding rights by claiming to protect them. It told lawmakers that they must say what they mean.