Republican presidential candidates Sen. Ted Cruz of Texas and Sen. Marco Rubio of Florida are among the 174 members of Congress who have submitted an amicus brief yesterday urging the Supreme Court to uphold a Texas anti-abortion law that threatens to close most of the abortion providers in the state.
The Supreme Court will hear arguments in Whole Woman’s Health v. Hellerstedt (previously called Whole Woman’s Health v. Cole) on March 2, considering whether sweeping abortion restrictions in Texas present an unconstitutional “undue burden” on women seeking abortions or whether they are merely meant to protect women’s health, as their backers claim. The case is a critical test of the anti-choice movement’s long-term strategy to weaken Roe by gradually chipping away at abortion access in the states, often by claiming that burdensome regulations are meant to protect the health of women seeking abortions.
Texas’ law was written in consultation with Americans United for Life, the national group that is leading the charge to eliminate abortion access via restrictive state laws. The regulations imposed by the law included specifications on things like hallway width and even on water fountains, along with unnecessary and sometimes untenable hospital “admitting privileges” requirements for abortion providers. If upheld by the court, the law would likely close all but a handful of Texas’ abortion clinics, creating a model for other conservative states to follow. Texas’ lieutenant governor at the time the law was passed, David Dewhurst, boasted that it would “essentially ban abortion statewide.”
Yet Texas lawmakers and their attorneys are sticking with the story that the law is a reasonable regulation meant to protect patients’ health, allowable under the framework laid out in the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. And that is the argument that the brief by Cruz, Rubio and their fellow members of Congress makes too, claiming that doctors “disagree” on the necessity of the regulations and so Texas legislators merely “decided to strike a balance that gives first priority to women’s health and safety, choosing to risk erring on the side of safety rather than on the side of danger.”
As an example of the supposed necessity of such regulations, the brief cites Kermit Gosnell, the Pennsylvania abortion provider who was convicted of a number of appalling crimes related to his shoddy practice. Gosnell was not only operating in an entirely different state, it was clear that his crimes were the result of insufficient enforcement of existing regulations on clinics rather than insufficient regulation.
In a statement about the amicus brief, Rubio started off with the Gosnell case, claiming that the Texas law “best protects the safety and well-being of women who choose to have abortions, and serves as a model for other states to follow,” adding that such measures are stop-gap until “we can put an end to abortion and protect life once and for all.” Cruz also raised the specter of Gosnell, claiming that “the most zealous abortion advocates, nothing—not even women’s health—can be allowed to stand in the way of abortion-on-demand.”
Rubio and Cruz, like the law they are defending, are deliberately skirting around the point. Rubio supports banning abortion in all circumstances, while Cruz has backed a radical “personhood” laws that would ban all abortion and could even risk outlawing some types of birth control. At the same time, Cruz backed then-Texas Gov. Rick Perry’s refusal to accept federal Medicaid expansion that would have insured more than one million people while Rubio has tried repeatedly to take away insurance coverage for contraception from some women. It’s hard to believe that Rubio and Cruz’s position in Whole Woman’s Health stems from a sudden interest in women’s health rather than a concerted strategy to eliminate abortion rights.
