On Tuesday, an appeals court panel upheld a Texas law passed in 2013 with the clear and unambiguous intent of making abortions all but impossible to get in the state. The Supreme Court is likely to take this case up, and when it does, there's a considerable possibility that it will accept the ruling and, in effect, create a backdoor repeal of Roe v. Wade. Depending on how far it chooses to go, we may find ourselves considerably farther down a road we're already traveling on reproductive rights: one in which we have two countries, one presided over by Democrats and one by Republicans, one where abortion is legal and one where it's technically legal, but all but impossible to obtain.
Give the anti-abortion forces this: They have demonstrated extraordinary creativity in coming up with new restrictions on women and the clinics that serve them. And when they do, they always say their only concern is for women's well-being, a claim so spectacularly dishonest that it's remarkable they can make it without busting out laughing every time.
I want to focus on one particular restriction at issue in this Texas case: that of "admitting privileges." The Texas law requires that in order to perform abortions, a doctor must have admitting privileges at a hospital within 30 miles. This is an increasingly common abortion restriction; right now 11 states have laws requiring admitting privileges, 9 of which were passed in the last five years, since Republicans' sweeping wins in the 2010 election.
I'm sure that when most people hear this term, they think it has something to do with hospitals and doctors but they aren't really sure what. It probably sounds like it just means that if there's a problem with an abortion then a woman can go to the hospital. This isn't what it means at all.
"Admitting privileges" actually means that the doctor is akin to a staff member of that hospital; among other things, she has the privilege to admit a patient for a stay in the hospital without the say-so of any other doctors. The problem is that because hospitals don't want to become embroiled in abortion politics, they regularly refuse admitting privileges to doctors who perform abortions. For example, doctors at the last abortion clinic in Mississippi applied for admitting privileges to seven hospitals in the area, and were refused at every one.
So what happens if you're a woman who had an abortion and you find yourself experiencing complications, but your doctor doesn't have admitting privileges at the local hospital? Well, you go to whatever hospital you like (or, if it's a real emergency, the paramedics take you to one), and you get treated. If the doctors at the hospital need to consult with the doctor who performed your abortion, they pick up the phone and call her. Which is pretty much exactly what will happen if your doctor does have admitting privileges.
If there's ever been a case of woman who suffered some negative medical outcome because her doctor didn't have admitting privileges at the hospital where she was treated, I've never heard of it. I've also never heard an anti-abortion activist explain exactly what will happen to a woman who goes to such a hospital, and why that hypothetical instance is so terrifying that in order to prevent it we must pass laws that put one clinic after another out of business.
And that's precisely what has happened in Texas, just as anti-abortion advocates hoped. In 2012, before this law was passed, there were 41 clinics performing abortions in the state; today there are only 18.
Like all abortion cases, this one will be determined entirely by the whims of Justice Anthony Kennedy, who has so much respect for women's autonomy that he once justified an abortion restriction by going on and on about how some women might later regret their choice, so it's much better to just not give them one. There's no way to tell for sure what he might do, but the question will hinge on whether the restrictions impose an "undue burden" on women seeking abortions, the standard established in a previous case. You don't have to wait 48 hours, have an ultrasound you don't want, and drive 200 miles to get yourself a vasectomy, but Kennedy may well decide that all that is not too much of a burden to impose on women who need abortions.
Now here's the really depressing part: If the Supreme Court were to rule that admitting privileges rules are a sham with no medical purpose that only serve to put abortion clinics out of business, it would be only the most temporary of setbacks for the anti-abortion forces. On the ride home from court they'd probably come up with three or four new restrictions to impose. Maybe the next abortion law in Texas or Oklahoma or South Dakota will require that doctors who perform abortions must be able to describe the proof to Fermat's Last Theorem in 60 seconds or less, or that in order to perform an abortion a doctor must have placed in the top 10 in the Indianapolis 500 within the last decade, or that women who want abortions must prove their physical fitness by holding a handstand for two minutes.
We already have two Americas when it comes to abortion. In one — in states controlled by Democrats, and for wealthy women living anywhere — abortions are available when they're needed. In the other — in states controlled by Republicans, for women without means — abortion might as well be illegal. There are already four states with only a single clinic that performs abortions, and if the Supreme Court takes this case and rules the way conservatives hope, before you know it there will be many more.
Editor's note: A previous version of this article misstated the number of Texas abortion clinics. It has since been corrected. We regret the error.