“There’s a sorry situation in the United States, which is essentially that poor women don’t have choice. Women of means do. They will, always,” said Supreme Court Justice Ruth Bader Ginsburg at Duke University Law School in July 2015.
Among the last cases up for review before the U.S. Supreme Court adjourns for the summer this week is Whole Woman’s Health v. Hellerstedt, which asks the question: What constitutes an undue burden for women seeking an abortion? But the debate goes beyond what is legal and what isn’t. It also asks, fundamentally, what women have the right to an abortion — not just in name, but in fact?
The landmark case challenged a Texas law known as HB2, which requires abortion providers to have admitting privileges at local hospitals and mandates that clinics meet the same standards as ambulatory surgical centers.
The petitioners say this type of law — often known as Targeted Regulation of Abortion Providers or TRAP — violates the standard of undue burden set in the 1992 case Planned Parenthood v. Casey. The state, meanwhile, argues the measures are meant to protect women’s health.
It’s likely the decision will be either 5-3, reversing the laws, or 4-4. A tie would uphold the decision of the 5th U.S. Circuit Court of Appeals, which approved the lion’s share of the law, but it would not set national precedent. The justices could also remand the case to a lower court to be reconsidered.
But, as Justice Ruth Bader Ginsburg said at Duke University Law School, abortion access will never be a problem for women of financial means.
“Let’s assume Roe v. Wade were overruled, and we were going back to each state for itself,” Ginsburg said. “Any woman who could travel from her home state to a state that provides access to abortion, and those states never go back to old ways … So if you can afford a plane ticket, a train ticket or even a bus ticket, you can control your own destiny, but if you’re locked into your native state, then maybe you can’t.”
Twenty-seven states have laws requiring a mandatory wait period after pre-abortion counseling before women are allowed to undergo the procedure, according to a Guttmacher Institute report. The shortest wait time is 18 hours in Indiana. The longest is 72 hours in Missouri, North Carolina, Oklahoma, South Dakota and Utah. In South Dakota, weekends and annual holidays don’t count.
Practically speaking, this means that in five states, it takes a bare minimum of three days to get an abortion. In Texas, whose laws are at the heart of this challenge, the wait time is 24 hours if a woman lives within 100 miles of an abortion clinic. But to have a nonsurgical abortion — the pill method — Texas women are required to take two pills, on separate days, at the abortion provider’s facility. Under HB2, there are approximately 750,000 women in Texas who live more than 200 miles from the nearest facility. These women must either travel that distance roundtrip several days in a row or pay for a hotel room.
These travel costs are in addition to the cost of the abortion, which can vary greatly based on the type of procedure and the stage of pregnancy. Planned Parenthood estimates the abortion pill can cost as much as $800 in some parts of the country (though often less), and in-clinic procedures in the first trimester can cost as much as $1,500. The costs get higher as the pregnancy advances.
This is a troubling reality for low-income women seeking the procedure, who are forced into a perpetuating circle: The longer they spend attempting to raise the funds for the procedure, the more expensive the procedure becomes.
A 2015 report from the Brookings Institution by Richard V. Reeves and Joanna Venator suggests class already has a major impact on abortion rates. “A poor woman is more than five times as likely as an affluent woman to have an unintended birth,” the report said. “Since unintended childbearing is associated with higher rates of poverty, less family stability and worse outcomes for children, these gaps further entrench inequality.”
Said Ginsburg: “That we have one law for women of means and another for poor women is not a satisfactory situation.”
In addition to Whole Woman’s Health v. Hellerstedt, the court is expected to rule Monday on McDonnell v. United States, a political corruption case involving former Virginia Gov. Bob McDonnell, and Voisine v. United States, which examines whether one can restrict gun ownership to a person convicted of misdemeanor recklessness.
The court is expected to release its decisions Monday at 9:30 a.m. EDT.