This article by NARAL Pro-Choice North Carolina Executive Director Tara Romano originally appeared in NC Policy Watch.
Forty-three years after the U.S. Supreme Court’s Roe v. Wade decision legalizing abortion, American women can still access this procedure if that is their decision. Maybe. Depending on where they live; what kind of health insurance they have; their financial status and transportation options; how much paid time off (or any time off) they have; their access to child care; and how safe their nearest clinic may be from aggressive protestors.
Ever since a 1992 Supreme Court ruling in Planned Parenthood v. Casey declared that states can set their own restrictions on the procedure, state legislatures hostile to bodily autonomy have created a patchwork of abortion laws and regulations across the country. Abortion access, like access to other health care options, is now entrenched in a two-tier system in which those with the means will manage, while those without means have fewer choices.
While the Casey decision gave states significant leeway in regulating abortion, it also established another important test – that of the “undue burden.” While states could enact abortion restrictions, they could not place an undue burden on those seeking out this constitutionally-protected procedure. What exactly constitutes this undue burden is what competing sides have been arguing over in state and federal courts since that time.
Is forcing a woman to travel 150 miles one way to a clinic an undue burden? What about a 72-hour waiting period? Or a forced ultrasound and state-prepared statement read by the doctor? Or restricting which doctors can perform an abortion? What about limiting insurance coverage of the procedure?
Over time these and similar restrictions have come to be known as “TRAP” laws (which stands for “targeted regulations of abortion providers”).The restrictions at the center of the recent Whole Women’s Health v Hellerstedt case, in which the Supreme Court struck down a pair of Texas laws, are typical of the TRAP laws seen across the country.
Under the Texas laws, abortion clinics were required to meet the standards imposed on “ambulatory surgical centers” and to have admitting privileges at local hospitals. Supporters of both regulations said the laws were there to protect women’s health. If those laws also made it more difficult to obtain the procedure, well…technically, it was still available, and the state was abiding by the Constitution. Or, at least, so went the argument.
In a 5-3 decision striking down both Texas laws, however, the Supreme Court rejected the supporters’ arguments and brought some clarity to what the “undue burden” looks like. Relying heavily on the facts and data provided to them while reviewing this case, the majority determined that “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”
With that, the Court raised the standards states have to meet when enacting these kinds of restrictions. It’s no longer enough to merely claim that an abortion restriction “improves the safety and health of women”; there must be some actual proof to back up that assertion. And that proof has to outweigh any harms that may result from those restrictions — harms that include the safety of women who attempt to access abortion care illegally or to self-induce an abortion.
Unfortunately, while the Texas ruling may seem to have established a simple standard, no one anticipates that access to abortion care will become equitable across the country anytime soon. Yes, the Texas clinics can stay open and the decision appears to call into question many TRAP laws in other states. There are, however, numerous other ways states have tried to restrict the procedure.
North Carolina law, for instance, does not include either of the two provisions struck down in the Texas case (although our leaders have tried), but it does impose a 72-hour waiting period for women seeking an abortion. This requirement has not forced clinics to close, but it clearly has a significant impact on access. The same can also clearly be said of the state’s new requirement that physicians send ultrasound records of the women receiving certain abortion services to the state – a regulation passed on the claim that doctors were somehow lying about their work. No one is sure what the Texas decision will mean for these types of restrictions, although the reaffirmation of this right unrestricted by undue burdens clearly calls them into question. At the very least, this decision ought to put North Carolina lawmakers on notice that ideology cannot trump either the Constitution or scientific evidence.
The bottom line: Reproductive rights, health and justice advocates in North Carolina and across the country welcome the Supreme Court’s Texas ruling, and the reaffirmation of this core constitutional right. Similarly, we welcome the Court’s recognition of TRAP laws as the political shams that they are and the fact that the judicial branch of our democracy has provided a check on ideologically-driven legislative overreach. We appreciate that this decision centered on the real people who have been impacted by these laws and we celebrate that our nation has pulled back from the brink of sending women back into the dangerous shadows to access abortion care. The decision provides renewed confirmation that all people deserve compassion, respect and dignity when making these deeply personal decisions about their bodies, their families and their futures. But the hard work to secure those freedoms is clearly far from over.