University faculty and alumni have written amicus curiae briefs for both sides of Whole Woman’s Health v. Hellerstedt, the first major case regarding abortion to come before the Supreme Court in years.The case was argued on Wednesday.
The case arose in response to the 2013 Texas state law HB2 that set two new restrictions on abortion clinics. The restrictions require hospital admitting privileges to people performing abortions, and for designated abortion clinics to meet the standards of ambulatory surgical centers, according to Professor Emeritus of economics and public affairs and theCharles and Marie Robertson Professor emeritus of Public and International Affairsat the Center for Health and Wellbeing at the University, James Trussell GS ’75.
Trussell, along with several University graduates, including Diana Foster GS ’98 and former postdoctoral fellow in the Office of Population Research Kelli Hall, co-signed an amicus brief in support of Whole Woman’s Health, the plaintiffs of the case who provide abortion services.
“This case is clearly a make-it-or-break-it case,” Trussell said.
He explained that if the plaintiffs lose, the case would set a nationwide precedent that shortsighted restrictions could be put in place. If there is a tie, the restrictions may still stay in effect in Texas, but not for the country as a whole. In the situation that the plaintiffs win, similar restrictions in other states would be struck down.
The case will define “undue burdens” previously established in the landmark 1973 case, Roe v. Wade.
Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project, wrote in a statement that, “the case before the Supreme Court concerns two Texas abortion restrictions that would shut down 3/4 of the clinics in the state.”
ACLU executive director Anthony Romero '87 was unavailable for comment.
Matthew Franck, director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute, said that the impact will mostly be restricted to Texas and states with conservative legislatures.
Along with Bradford Wilson, executive director of the James Madison Program in American Ideals and Institutions at the University, Franck co-signed an amicus brief in support of the defendant — the Texas Department of State Health — that “covers the federalism angle,” he said. Wilson deferred comment to Franck.
Franck said that he is pro-life and would like to see Roe V. Wade revisited and overturned, but that this is not what this case is about.
“Respect for federalism means respect for difference, because the Constitution allows leeway for different policies even on very important issues like to this to be pursued by different states,” Franck said.
He added that there should be a checkerboard of different levels of regulation, some of which already exists.
“I support Texas regulation in part because I think it will reduce the number of abortions performed in Texas,” Franck said, “The Texas legislature is trying to put abortion clinics out of business that they think are slipshod and dangerous to women.”
Yet, Texas is just the tip of the iceberg, Dalven wrote in a statement.
“Most people don’t know this, but in the last five years, states have quietly passed 288 restrictions on access to abortion,” he said.
Trussell noted that some women are already traveling hundreds of miles for an abortion clinic and more will find themselves in the situation if the restrictions are upheld.
Trussell said you don’t have to go beyond the authors of the bill to show that the intentions of these restrictions are to close clinics, as the authors said “quite frankly.”
Office of Population Research postdoc research associate Abigail Aiken, another signatory on an amicus brief supporting Whole Woman’s Health, said that though this case will not reverse the legally protected right of women to choose an abortion, it will make practice of that right extremely difficult or impossible.
“The Supreme Court has recognized that abortion is a constitutional right,” Dalven said. “But a right without access is no right at all. That is why it is so important that the Court strike down these laws.”
Trussell said that the new restrictions on the Texas clinics don’t make abortions any safer and that the procedure is already extremely safe. He said that there are riskier procedures that are performed without these restrictions, like colonoscopies.
Texas Senator Ted Cruz ’92, Florida Senator Marco Rubio and 172 other members of Congress signed a brief supporting the pro-life side of the case.
Trussell said that Cruz “doesn’t believe in science.”
“I don’t think that anybody really, who has a brain, actually, could argue that these restrictions improve women’s health,” Trussell said. “How could they possibly? They’re not designed to do that. They look like they’re doing that and they’re deliberately designed to sound good, but when one looks at it or one thinks about it for even a nanosecond, one realizes it’s just preposterous.”
Cruz’s office did not respond to multiple requests for comment.
Franck said the brief he signed cites previous precedents asking the court to be mindful of things it ruled for previously.
“Legislatures are both more representative and more informed to make those kinds of decision,” Franck said. “It’s really not good for the health of our democracy or constitution for judges to pretend in the name of the Constitution [that] they get to make those very diminutive judgments about those policy questions.”
However, Trussell noted that the problem is that many justices turn to their own preconceptions when it comes to the issue of abortion.
“I think we’re all extremely worried,” Trussell said.
Franck said that there’s a network of scholars and lawyers who write these amicus curiae briefs that asked Wilson and Franck to sign. He said that this brief had 24 signatories, among them scholars of federalism and experienced law professors, such as Stanford Law Professor and director of the Stanford Constitutional Law Center Michael McConnell.
Trussell said there are dozens of briefs for both sides, notably including pro-choice briefs from 100 lawyers testifying that an abortion at a young age allowed them to finish their education and establish their careers.