The Supreme Court, Women’s Reproductive Health and Science

Today the Supreme Court handed down the most significant ruling on abortion in decades.

This morning, the Supreme Court issued a 5-3 ruling in Whole Woman’s Health v. Hellerstedt, widely considered the most important abortion case to come before the high court in several decades. The ruling, which strikes down several stringent abortion restrictions passed in Texas, is a historic victory for abortion rights advocates. As a result, the 18 abortion clinics currently operating in Texas will be able to stay open, and rules in seven other states that were similar to those that were just reversed in Texas could also be invalidated.

At issue in the case were two requirements of HB 2, an omnibus abortion law passed in Texas in 2013. One mandated that abortion providers have admitting privileges at a nearby hospital, and the other required abortion clinics to meet the strict infrastructure standards of ambulatory surgical centers—hospital-like facilities usually used for outpatient surgery.

It is worth noting that this ruling struck down the law that caused Texas state senator Wendy Davis to put on those famous tennis shoes and launch her historic filibuster. Ultimately she failed to stop passage of the bill, but the Supreme Court just made her point.

Hannah Levintova picks up on a point that I’d like to emphasize about this decision.

…the decision makes clear that the argument that has been made over and over by anti-abortion groups to justify new clinic restrictions across the nation—that they improve women’s health—will be much more difficult to make going forward without hard evidence.

Justice Breyer explains several times in his opinion that the court did not buy Texas’ argument that the admitting privileges and ASC requirements benefit women’s health. “Nationwide, childbirth is 14 times more likely to result in death,” he wrote, “but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion.” Breyer adds in a parenthetical that he repeated from the bench, and that Justice Kagan mentioned during oral arguments in March: “The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion.”

Of the admitting privileges requirement, Breyer writes bluntly: “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one women obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

The big news is that “hard evidence” (i.e. actual science) will be required from those who wish to make access to abortion more difficult. It’s always been clear that science is not a strong suit for these folks.

We can only all wish that SCOTUS always demanded hard evidence and science for their decisions. I’m thinking today about how that was certainly not true in the Hobby Lobby decision. If you remember, that is the case where for-profit companies claimed that the Obamacare mandate to provide contraceptive coverage in their employees’ insurance policies violated their religious freedom. But that case wasn’t presented as an objection to contraception in general. The issue raised by the plaintiffs was that 4 forms of the contraceptives mandated by HHS are actually abortifacient because they prevent implantation of an already-fertilized egg. That is simply not true.

There are two kinds of emergency contraception on the market: an over-the-counter one generally known as Plan B and a prescription-only one known as Ella. According to the amicus brief filed by the American College of Obstetricians and Gynecologists and several other medical associations, “there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.” Instead, they prevent ovulation, so there is no egg to fertilize. That includes the longer-acting Ella: “There is no evidence that [Ella] affects implantation.”

One form of the IUD, known on the market at the Mirena, includes hormones that prevent ovulation. The other, preferred by women who experience side effects from artificial hormones, doesn’t. “When used as emergency contraception” – i.e., after unprotected sexual activity – “the [non-hormonal IUD] could also act to prevent implantation,” according to the amicus.

If you’re keeping count, that’s one out of four that maybe does what the plaintiffs say it does, in the rare instances it’s inserted after unprotected sex…

Throughout Alito’s majority opinion, there are references to the religious beliefs of the plaintiffs that life begins at fertilization and these 4 contraceptives prevent a fertilized egg from implanting. Regardless of your opinions about abortion and when life begins, that decision was based on conjured up beliefs that ignored science.

That is why I celebrate the Supreme Court’s decision today. Perhaps it means that, going forward, there will be a closer relationship between the Court, women’s reproductive health and science.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.