Pro-choice advocates rally outside of the Supreme Court on March 2, 2016 in Washington, DC. On Wednesday morning, the Supreme Court will hear oral arguments in the Whole Woman's Health v. Hellerstedt case, where the justices will consider a Texas law requiring that clinic doctors have admitting privileges at local hospitals and that clinics upgrade their facilities to standards similar to hospitals. (Photo by Drew Angerer/Getty Images)
This post originally appeared at The Nation.
In the summer of 2013, Texas enacted a law “to improve the standard of care for abortion patients.” That’s what the state’s attorney general has told the Supreme Court lawmakers intended to do anyway. The law, known as HB2, requires clinics that perform abortions to meet standards set for surgical centers, even if they only provide non-surgical abortions by pill, and mandates that doctors have permission to admit patients to a hospital within 30 miles. Together, the two requirements could leave fewer than a dozen clinics open in a state home to 5.4 million women of reproductive age.
The Supreme Court began hearing arguments in a case against the two provisions on Wednesday morning. It’s the first major test of abortion rights in a decade. The decision could make the procedure inaccessible for women who don’t have the means to travel long distances, not just in Texas but in a number of other states that have passed similar laws, including Mississippi, Alabama, Louisiana, Kansas and Oklahoma.
Defenders of HB2 say their intent is not to make abortions harder to get, but to make them safer. Never mind that the medical community says there is “no medical basis” for the regulations, or that other procedures with similar or greater risks aren’t subject to the same rules. The law’s proponents are trying to wriggle through a window created by the court’s 1992 ruling in Planned Parenthood v. Casey, which enabled states to put some regulation on abortion so long as it was “calculated to inform the woman’s free choice, not hinder it,” and did not put an “undue burden” on access to the procedure. In other words, Texas needs a valid reason for enacting regulations that limit access — hence the attempt to justify HB2 on health grounds.
Unless you think the American Medical Association, the American College of Obstetricians and Gynecologists and the American Academy of Family Physicians are a bunch of know-nothings, it’s hard to see Texas’ health-based argument for HB2 as anything but what it is: total baloney. But for more evidence that the law’s real purpose is to restrict abortion access, it’s useful to examine the history and mission of the group that has taken some credit for Texas’ law, as well as similar regulations in other states: Americans United For Life.
AUL describes itself as “the nation’s premier pro-life legal team” working to achieve “one end,” namely the end of legal abortion. Founded in 1971, AUL spent most of its first two decades trying to overturn the Supreme Court’s decision in Roe v Wade. But after getting little traction toward reinstating a federal ban, the group redirected its focus to the states, and shifted its strategy from a direct assault on the legality of abortion to an incremental approach aimed at making it more difficult for providers for operate, and for women to reach them. AUL now functions as a factory for anti-choice legislation, producing model bills through its “Women’s Protection Project,” much as the American Legislative Exchange Council (ALEC) churns out conservative policy blueprints.
“We don’t make frontal attacks. Never attack where the enemy is strongest,” Charmaine Yoest, the group’s president and CEO, explained to the Catholic Register in 2011. “What we do is very much under the radar screen and not very sexy.” One of the things that distinguishes Yoest and AUL from other antichoice activists is the group’s understated rhetoric. Instead of fire and brimstone, Yoest emphasizes women’s health.
The gentler tone doesn’t mean AUL’s motivation is any less extreme, prochoice advocates say. “Let’s be clear: there is no ‘women’s health’ goal behind Americans United for Life’s agenda. Their goal is to end legal abortion in this country, despite the fact that 7 in 10 Americans support it,” said Ilyse Hogue, President of NARAL Pro-Choice America. “If Americans United for Life truly wanted to protect women’s health, they wouldn’t seek to impose unnecessary restrictions on safe abortion clinics. These restrictions result in abortion clinics being forced to close, leaving a woman with fewer safe options to terminate a pregnancy is she chooses.”
Nevertheless, a softer tack has been effective. Since 2010, state legislatures have passed more than 280 restrictions on abortion, some of them almost entirely copied and pasted from AUL’s model bills. One-third of the 40 abortion restrictions passed by states in the first half of 2012 were written by AUL, according to The New York Times. They include laws requiring women to wait up to 72 hours between an initial consultation and an abortion; laws requiring doctors to give medically-unsound information about abortion to their patients; bans on abortion earlier than the window of access outlined in Roe; and the two regulations at issue in the Texas case, one mandating abortion providers have admitting privileges at nearby hospitals and the other requiring clinics to meet standards for ambulatory surgical centers, even when they only administer non-surgical medication abortion.
AUL claims Texas’ regulations were “inspired” and “based, in part, on AUL model language” and were “enacted with the help of AUL experts.” A year after he signed the legislation into law, former Texas Gov. Rick Perry thanked AUL for playing “a key role in developing and promoting legislation.” On Tuesday, asked about AUL’s influence on HB2, a representative responded, “The Texas legislature did not use AUL’s model language directly … although the idea of this kind of law is something that AUL has championed.”
There’s a major disconnect between what AUL and other groups supporting the Texas law tell the public about its health and safety implications, and what they tell the courts. In February, AUL submitted a brief that Yoest described as encouraging the Supreme Court to “affirm its support of laws that protect women’s health” in the Texas case. But what the brief actually argues is that the court shouldn’t even consider whether the abortion regulations promote health. That’s how the 5th Circuit Court of Appeals made its decision to uphold the Texas law, by arguing that the “state is not required to prove that the objective of the law would be fulfilled.” That meant that all the medical evidence indicating that the law would actually harm, not promote, women’s health, wasn’t considered relevant.
In other words, ignore Texas and AUL’s insistence that they’re arguing for stronger health and safety standards. What they’re really arguing is that the facts about health and safety shouldn’t matter.
