by Kendra New
“[The] right of privacy in the Ninth Amendment’s reservation of rights to the people . . . encompass[es] a woman’s decision whether or not to terminate her pregnancy.”[1]
On March 2, 2016, the Supreme Court heard oral arguments for Whole Woman’s Health v. Hellerstedt, a case involving Texas House Bill 2 (HB2) that imposes restrictions on abortions. The question becomes whether these restrictions constitute an “undue burden” on women’s constitutional right to obtain an abortion.
HB2 is a TRAP—Targeted Regulation of Abortion Providers. One day over forty abortion clinics are operating in the state of Alabama, the next only six. Furthermore, only one abortion clinic remains in Mississippi, all thanks to a TRAP that was enacted supposedly to “protect the health and safety of women.” However, this law was not enacted to protect the health and safety of women. It simply imposes harsh restrictions on abortion providers that in turn forces many abortion clinics to shut down, ultimately giving pro-life supporters the result they were seeking in the first place by enacting HB2.
Why is HB2 forcing clinics to close? Because the clinics cannot keep up with the overbearing and expensive regulations the law imposes, all of which are unnecessary in order to perform abortions safely. As a result of abortion clinics shutting down, several physicians, including anesthesiologists, are leaving the abortion practice as they cannot afford to continue practicing in an unstable work environment where they are unsure whether they will have a job the next day.
As a result of these useless regulations, women, and young girls, are being forced into motherhood. For example, a thirteen-year-old girl was raped. She was over twenty weeks pregnant. She attempted to obtain an abortion. However, the clinic where she attempted to make an appointment to get the abortion was forced to turn her away because an anesthesiologist was not available to put her to sleep–which was required because she was twenty weeks into the pregnancy. An anesthesiologist was unavailable because there was only one anesthesiologist serving multiple clinics, as several others had left the field. The clinics were at the mercy of the one anesthesiologist’s schedule. The thirteen-year-old rape victim was already almost to the point where she would no longer be able to obtain an abortion due to viability of the fetus. Due to the fact that the abortion clinic had to turn her away due to lack of resources, the victim was forced into motherhood.
The abortion physicians that have stayed in the business are forced to travel across state borders in order to provide women with access to abortions. However, another regulation that HB2 imposes is that out-of-state physicians must have admitting privileges from a local hospital in a state the visiting physician would like to perform abortions. However, the requirement that physicians obtain admitting privileges applies only to those who perform abortions. For example, this requirement does not apply to other types of doctors, such as doctors seeking to administer ambulatory care. If a hospital denies a physician admitting privileges, then the physician is unable to perform abortions. Therefore, in some states, women are denied the right to get an abortion all together. As a result, if a woman in one of these states would like to obtain an abortion, she is forced to travel to another state that has abortion clinics or hospitals that will provide admitting privileges to a physician who performs abortions. This places an undue burden on women seeking to obtain abortions.
What if the woman cannot afford to pay the travelling and lodging expenses in order to obtain an abortion in a different state? She is forced to go through with a pregnancy that she does not want to carry out. She is denied her constitutional right to have an abortion. She is sentenced to motherhood.
The Supreme Court has heard oral arguments in Whole Woman’s Health v. Hellerstedt and hopefully the Court will make the right decision: HB2 is unconstitutional as it places an undue burden on women’s right to obtain an abortion under the Ninth Amendment.
[1] Roe v. Wade, 410 U.S. 113 (1973).
Kendra New is an Articles/Comments Editor at the FIU Law Review. Ms. New can be reached at knew001@fiu.edu.