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Caught in a TRAP

Yesterday the Supreme Court heard arguments for Whole Woman’s Health v. Hellerstedt. This case involves the claim that two laws create an undue burden on the right of a woman to obtain an abortion in the state of Texas. One of the laws requires that doctors at abortion clinics have admitting privileges at a hospital 30 miles from the clinic, and the other that clinics be expensively retrofitted to become “ambulatory surgical centers,” or ASCs.

Laws like this are referred to as TRAP laws, which stands for Targeted Regulation of Abortion Providers, because they involve imposing regulations on abortion providers in the name of “protecting womens’ health” that are far and away more stringent than regulations for other more dangerous medical procedures, and these laws have the effect of putting clinics out of business because they cannot afford to remodel, relocate, and/or rebuild in order to conform to such unreasonably high standards.

I read the arguments last night and made the experience more enjoyable by live-tweeting my favorite bits along the way. The transcript is available here, and Dahlia Lithwick of Slate also did a very good run-down of the proceedings here.  The justices Breyer, Ginsburg, Sotomayor, and Kagan all did an amazing job tearing apart the argument that effectively regulating abortion clinics out of business is permissible if a state sees fit to do so.  Near the end of the arguments (pg. 72), Texas Solicitor General Scott Keller tries to claim that because the regulations are on the clinics, they do not represent a threat to a woman’s rights, to which Ruth Bader Ginsburg replies:

But this is about — what it’s about is that a woman has a fundamental right to make this choice for herself. That’s what we sought as the starting premise. And then this is certainly about –­­ Casey –­­ Casey made that plain, that it — ­­the focus is on the woman, and it has to be on the segment of women who are affected.

She’s right– a freedom is meaningless if there is no way to exercise it.  Women obviously can’t and shouldn’t perform their own abortions (though a disturbingly high number have tried to do just this in Texas, due to clinic inaccessibility), so if they are to exercise their right to have one, the state must not place obstacles in the way which serve no purpose except to inhibit them from doing so.

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