I couldn’t sleep the night before the Supreme Court heard oral argument in this Term’s major abortion case, Whole Woman’s Health v. Hellerstedt. As I tossed and turned, I couldn’t stop thinking about how monumental the case was and the major implications it has for women across our country. And, on top of my fitful sleep, a hard wind howled loudly, strongly, and all through the night, rattling both the windows and my nerves.
In hindsight, the wind was scene-setting, because it reminded me of something Justice Blackmun stated many years ago in an earlier challenge to abortion restrictions. Worrying about the direction of abortion rights in our country, he stated “The signs are evident and ominous, and a chill wind blows.”
And with that chill wind, I walked into the Supreme Court to hear arguments in the case. And when I left hours later after witnessing an amazing discussion over a fundamental constitutional right, something in me had changed. I knew I had just witnessed history in the making.
As a quick refresher on the case: Whole Woman’s Health involves challenges to certain requirements Texas passed in 2013 targeting abortion providers. The Texas legislature passed the restrictions with the not-very-hidden intent of shutting down abortion clinics, even though the lawmakers claimed to have done it to protect women’s health.
So why did I feel that watching the Justices hear arguments about the Texas restrictions was history in the making? Because I could tell I was watching brilliant legal minds discuss something of central importance to my work, to women in this country, to our constitution.
I sat at the edge of my seat taking in every question, every answer, every look. I almost couldn’t contain myself when U.S. Solicitor General Verrilli ended his 10 minutes arguing against the Texas requirements with the following compelling and brilliant statement:
“If you do find that this law is upheld, what you will be saying is that this right really only exists in theory and not in fact, going forward, and that the commitments that this Court made in Casey will not have been kept.”
That mic-dropping closing statement stayed with me throughout the rest of the argument and echoed in my brain as the Justices posed question after question to the Solicitor General of Texas, uncovering more and more holes in Texas’ case:
- Why require such restrictions on abortion providers, but not providers that provide the same procedure for miscarriages?
- Why do you require these requirements on abortion, which has an extremely low complication rate, and not impose such restrictions on providers of colonoscopy or liposuction, procedures that have much higher complication rates?
- If you wanted to protect women’s health, why can’t you point out any situation in Texas—or the entire country—where the outcome would have been different for women’s health because of requirements like these?
- Why do you say it’s ok to force Texas women facing clinic closures in their own state to go to New Mexico, when New Mexico doesn’t have the same “protecting women’s health” requirements?
- Why Texas has passed requirements that seem to be driving up rates of surgical and later abortions in Texas compared to other states, which may not be “medically wise”?
And when I left the Court, I felt rejuvenated. I walked out of the Court, stared into the sea of thousands of supporters of safe, legal abortion, and no longer felt the chill of a cold wind hitting my back.
I don’t think the chill wind will be blowing anymore.