Is the Supreme Court About to Make Abortion Completely Inaccessible?

This week is the beginning of SCOTUS season, and the Supreme Court is announcing the cases it will hear in its next term. For those on both sides of the abortion divide that means watching for Whole Women’s Health v. Cole, the legal challenge to Texas’s HB 2, which is a double-decker bill that A) requires all abortion clinics to operate as Ambulatory Surgical Centers [ASCs] and, B) for all abortion-providing doctors to have admitting privileges at a local hospital. This rule dropped the number of abortion clinics in the state from around 40 to a mere eight before the Supreme Court intervened with an injunction that allowed a handful of clinics to operate even without meeting ASC standards.

While WWH v. Cole has two prongs to be argued when it reaches the full bench, it is the admitting-privileges debate that makes those who value abortion access the most nervous. As pundits have consistently noted, the Supreme Court did not take up an appeal from Mississippi over a similar admitting-privileges requirement, which, if enforced, would have closed the only legal abortion provider in the state. The question on everyone’s lips is whether it was ignored because the requirement itself was unconstitutional, or because the court wanted to wait for a more robust abortion rights challenge to finish working its way up the ladder—and let even more admitting-privileges laws pass on the state level before that happened.

As it stands, mandatory local-hospital-admitting privileges—or its close cousin, the local-hospital-transfer agreement—have spread through red-state America like mold in a lunchbox left in a school locker over spring break. Standing with the locker closed, you may not even know there is a problem. Open the door, and you might get an inkling that something is wrong. Unzip the zipper, and you see exactly how bad the situation is.

It is the beginning of October and the Supreme Court’s hand is now positioned on that zipper.

If abortion-rights supporters get lucky, the court could offer a ruling that admitting privileges, which The American College of Obstetricians and Gynecologists calls medically unnecessary, are in fact an unconstitutional burden on the right to terminate a pregnancy. Or there is the other extreme end of the spectrum, and it could decide that states should have the right to choose what legislation they want to pass, and as such, admitting privileges are a reasonable precaution to protect patient safety.

Yes, even if it closes every clinic in the state.

I don’t actually see that happening, however. Instead, what I see is a scenario in which the courts rule that as long as it does not directly close absolutely every clinic in the state, admitting privileges are in fact a justifiable requirement. It would be a ruling nearly as bad as actually upholding the original law, but it would skirt the line of causing “undue burden.” At least, it does if a person is inclined to use the most lenient definition of that phrase possible.

In a “compromise” ruling, admitting privileges could be legally enforced as long as the enforcement didn’t shut down every clinic in a state. Under such a technicality, abortion is still legal and available, even if the actual resources needed to access it is beyond the financial and physical capabilities of many of those who might need the procedure.

For a state like Mississippi, there would be no change. Meanwhile, in a state like Texas, where we already saw briefly what access looks like when HB 2 went into full effect, that would mean less than a dozen clinics would be open throughout the state, all of which are located in four major metro areas. In facing this massive access crisis, however, Texas would be far from alone.

Alabama currently has five clinics, only one of which has a provider who has hospital-admitting privileges in effect. The other four are open due to court injunction. Louisiana has five clinics, and only one clinic has a doctor with admitting privileges. The others are open because of a court injunction. A lawsuit currently blocking Oklahoma’s admitting-privileges law is keeping the provider who performs over half of the state’s abortions from being forced to shut his doors. A lawsuit in Wisconsin is stopping the admitting-privileges law from shutting down the clinic of the doctor who serves the largest percentage of abortion patients in that state. Tennessee, Ohio, and Missouri are all battling the same fight over admitting privileges or transfer agreements, taking state requirements that abortion clinics essentially need the permission of hospitals in order to operate to their own local courts.

Are you starting to get the picture?

If the Supreme Court eventually decides that admitting privileges, transfer agreements, and other hospital-centered relationships are not an undue burden on abortion access as long as it doesn’t close down every clinic in the state, then there are literally swaths of the country that could go virtually inaccessible as a result. From Dallas to Atlanta, there would be less than ten clinics remaining, and that would be assuming that those which did have privileges could continue operating. As we’ve already seen, abortion opponents have few qualms about putting intense pressure on hospitals that do offer relationships with providers, from picketing their homes to investigating their schools, anything that they hope can make the hospitals uncomfortable enough to sever their partnerships.

So far, WWH v. Cole hasn’t made it onto the docket, but it is unlikely to hold off forever. Like many of the more controversial cases, a spring hearing is more likely, with a court decision expected sometime in June. That means that in the summer of 2016 the number of one-clinic states could potentially double, and even more states would be losing their largest in-state providers. If it happens, that will cause a flooding of the remaining clinics of the sort that forces patients to wait even longer to end a pregnancy, increasing costs and risks. That scenario is already occurring in Texas, where in some cities patients are waiting as much as three weeks to get into a clinic for a procedure.

If the Supreme Court upholds admitting privileges on any scale, what Texas is seeing already may become the new standard for many low access states. Even worse, it could become a best-case scenario.