This Year's Abortion Battle

By Susan Estrich

November 13, 2015 5 min read

On Friday, the United States Supreme Court agreed to review the Texas abortion law that, were it allowed to go into effect, would reduce the number of abortion clinics in the state from 30 to 10. The new law would require abortion clinics to meet the same regulatory standards as surgery clinics, and would require the doctors who perform abortions to have admitting privileges at local hospitals.

The fight about abortion rights has, for decades now, been a fight about access. If you're a middle-class woman living in an urban center, particularly on either coast, your rights are secure. In California, for the most part, Planned Parenthood is not a political issue but a valued service provider; doctors who perform abortions do not fear for their lives, so they need not be imported from other states; and young women under 18 need not secure parental consent or go to court if they can't, as they must in other states.

On the other hand, in over 80 percent of the counties in America there are no abortion clinics or providers at all. As Rachel Maddow pointed out: "Why bother making it illegal if you can just make it impossible to get?"

And the way you make it impossible is by heaping burdens on both the providers and the patients, leaving the most vulnerable patients to pay the price. These are the women for whom Roe v. Wade is a meaningless promise: teenagers; poor women; rural women; women lacking access to education and health care who may not even know they're pregnant; victims of rape and incest, which they are afraid to acknowledge. I have never understood the morality of forcing into motherhood the women least able to handle it. This denies them, in the name of "life," the right to control their bodies — a right the privileged take for granted.

In the case of Texas, for instance, the requirement for doctors to have admitting principles at local hospitals means doctors can't be brought in from big cities or other states — doctors who might be less vulnerable to local threats and pressure. As one of my friends once said, you shouldn't have to be a hero to be a gynecologist. And it's not just about individual heroics. Too many medical schools and training programs, not wanting to be caught in political battles, have quietly stopped teaching young doctors how to perform abortions. So even if local gynecologists are willing to expose themselves (and their children, too) to protestors, they might not know how to perform abortions.

And the requirement that clinics have the same equipment and setup as surgery centers is an extreme version of the classic approach of making abortion unnecessarily expensive. Abortions have been performed in doctors' offices for decades, and continue to be, and no state has outlawed that. But there's the middle-class bias, again. Fifteen-year-old girls don't generally have private doctors in quiet offices willing to offer safe and legal D&C procedures, nor do they know how to find them. Poor women can't afford them. Rural women don't even know where they are.

Just to be clear, this debate is not about protecting mothers' health. That's the problem for the Texas legislature here. First-term abortions don't involve surgery. Pregnancy is more dangerous. The only reason these regulations were upheld by the court of appeals is because the court believed the legislature had a rational basis for the statute.

But that's not the standard for limiting the exercise of a right guaranteed by the Constitution. In that case, there must be no "undue burden." It is, I expect, precisely for that reason that last summer, Justice Kennedy joined the four liberal justices to stay — that is, delay — enforcement of the new law until the Court could decide the issue. It only takes four votes to grant certiorari — but it takes five to grant a stay. And five to win. A decision should be handed down by next summer.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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