In an historic ruling today, the Supreme Court struck down a Texas law that required abortion providers to have admitting privileges in hospitals no more than 30 miles away from their practices. The law also required that clinics operate as ambulatory surgical centers, which meant paying for the potentially untenable costs of new construction and the purchase of more equipment.
In Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled that such restrictions "vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women's health capable of withstanding any meaningful scrutiny."
The law, known as HB2, was approved by the Texas state legislature in 2013 and went into partial effect. Had the law been upheld today, the number of abortion clinics in Texas would have dropped precipitously from 40 before 2013 down to nine. Nine clinics in a state with more than 5 million women of reproductive age.
A critical and worrying concern for many abortion rights researchers and advocates in anticipation of the ruling was whether and to what extent the court could be relied on to base its decision on sound public health data.
They had good reason to be. When it comes to abortion, my colleagues and I have found American judges cannot always be counted upon to rely on public health data.
The question before SCOTUS in this case was whether HB2 placed an “undue burden” on women. That is, did this law place substantial obstacles in the paths of women trying to access abortion? The facts were clear: It did.
The data showed that in Texas and other states where restrictive laws that shutter clinics had passed, women had to travel farther to access abortion. That translates into time away from work and other commitments, as well as increased costs in the form of payment for transportation and lodging.
The data also showed that women face longer wait times. For some, the wait is so long that they are pushed over the legal gestational age limit for having an abortion. For others, the cost of the procedure, which increases alongside gestational age, becomes too high to bear. We also know that women turn to unsafe methods to end their pregnancies when they are unable to access abortion safely in clinics.
With all of this information so readily available, you might think that the Supreme Court’s ruling was a foregone conclusion. Unfortunately, the judicial record suggests otherwise.
My colleagues and I have reviewed 70 abortion court cases from 2011 to 2015 and found that, even when data is considered by courts, it isn’t always understood or applied correctly. Here are some things worth knowing about how research has factored into past U.S. abortion laws and court rulings and what the Supreme Court’s ruling suggests about the future:
1. Laws that restrict abortion access do not need to have a factual basis.
In 2014, when a federal appeals court upheld the admitting privileges in HB2, it chose not to review relevant public health research, and instead deferred to the state’s unsubstantiated rationale that the law improves abortion safety and protects women's health.
The 5th Circuit Court of Appeals explicitly rejected the power of data, asserting that “rational speculation unsupported by evidence or empirical data” was all that is required to enact a law. So lawmakers could claim that HB2 was designed to protect women’s health without proving that it did or was likely to do so.
2. U.S. courts dispute the extent to which facts matter in the courtroom when it comes to abortion.
In many other areas of the law, tactics for incorporating and evaluating scientific evidence in the court's decision-making are developing robustly: vaccine court, juvenile mental health, intellectual property with respect to medications, etc. But courts have taken differing stances on the extent to which science factors into decision making when it comes to abortion rights.
For example, when the 7th Circuit Court of Appeals overturned a Wisconsin admitting-privileges law in 2015, it used public health research to consider how burdensome the proposed law would be on women, and concluded that when the evidence supporting a restrictive law is weak, the burden on women is likely to be “undue.”
But the 5th Circuit, which has jurisdiction over Mississippi, Louisiana and Texas, has staunchly opposed this approach. When deciding on another case involving Whole Woman’s Health in 2014, the 5th Circuit chastised the district court (which had struck down HB2) for examining whether or not the ambulatory surgical center requirement actually improves women’s health.
“In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” it asserted. In other words, the real-life effects of this requirement don't matter to the court.
Without any norms governing the extent to which research matters in court rooms, similar laws may be evaluated in entirely different ways in different parts of the country. So women in some places will be able to access their right to abortion, and in others will be virtually cut off.
But today, the Supreme Court set a new standard for the role that evidence should play in judicial analyses.
According to prior case law, it asserted, courts should place “considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures”.
3. Even when they do consider data on the effects of abortion, courts don’t always interpret it correctly.
In public health research, some findings are "gold standard," others are mere curiosities. The quality of study design, data collection, and analytical techniques determine the kinds of conclusions that can be drawn. If two studies take differing methodological approaches to the same research question, it is important to assess the quality of each when comparing their results.
In 2012, the 8th Circuit Court of Appeals didn’t do this. The case concerned a North Dakota law that requires providers to tell patients that obtaining an abortion leads to an increased risk of suicide or suicide ideation.
Though the judicial opinion described studies presented to the court from both sides, it failed to distinguish between studies of poor and high quality.
For example, the court erroneously contested a high quality study that found no relationship between abortion and suicide, while it upheld a study of lesser quality, which could not rule out alternative explanations for the relationship that it found.
Despite the Supreme Court’s ruling today, which will limit the extent to which states can enact restrictive laws like HB2, countless other laws that require physicians to provide medically inaccurate information to abortion patients have and will continue to be passed through state legislatures around the country.
Provisions like the suicide advisory in North Dakota use scare tactics and bar women from accessing truthful information in order to prevent them from obtaining abortions. In order to fight back, courtrooms must begin to correctly interpret the evidence about the effects of abortion on women’s health and well-being.
4. When it comes to data on the impact of abortion restrictions, the tide is turning.
Historically, courts have not explored the data on the extent to which women could actually exercise their right to access abortion. Prohibitive costs and travel distances were not considered real burdens, if legal abortion was still available somewhere, somehow.
But more recently, in cases from Wisconsin, Arizona, Alabama and Idaho, studies that show that abortion restrictions lead to delays in accessing care have been considered proof of undue burden.
This trend is important because it suggests that courts are not only increasingly interested in public health evidence, but that they are also concerned about the social and economic conditions that determine, and often undermine, the extent to which abortion rights can be exercised by everyone.
Today, the Supreme Court reinforced this message. The petitioners’ case rested largely upon new public health data about the physical and financial burdens that were imposed upon women in Texas after HB2 was allowed to go into partial effect.
This data matters, wrote Justice Breyer in the majority opinion, “We recognize that increased driving distances do not always constitute an ‘undue burden.’ But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s ‘undue burden’ conclusion."
Emily Maistrellis is a public health researcher who focuses on sexual, reproductive and maternal health and rights.