CAROL DOWNER’S FEMINIST CRYSTAL BALL:

 CAROL LOOKS INTO HER CRYSTAL BALL TO MAKE  PREDICTIONS ON SCOTUS DECISION IN WHOLE WOMAN’S HEALTH VS. HELLERSTEDT, 15-274

Tuesday, March 2, 2016, SCOTUS heard arguments on the constitutionality of Texas abortion regulations, Whole Woman’s Health vs. Hellerstedt.   Various SCOTUS watchers have weighed in with cautious predictions of the decision.  I offer my predictions with reckless abandon.  Be forewarned, my predictions are solely to spark discussion and debate.  I failed miserably to predict the shutdown of clinics in Texas.  I figured the U.S. military-industrial complex needed women in the work force so much  that they would not allow state legislators to pass legislation that actually shut down clinics.

HISTORICAL BASIS FOR CAROL’S CRYSTAL GAZING

Since the 1970’s, having a network of abortion clinics and being leaders in the abortion provider movement, our Feminist Women’s Health Centers brought us into contact with government agencies, other abortion providers, and activists, demographers and other people high up in international population control circles.  We found that political change in the arena of abortion comes when governments are influenced to either encourage or discourage population growth by the liberal and conservative sections of the ruling elite, not from changes in the political climate.  Throughout the last 50 years, abortion polls have been consistent.  Generally, 20% favor legalizing abortion in all situations, 20%, favor making abortion illegal in all situations and 60% favor abortion being legal in nearly all cases. The violence against abortion providers and the drama that is played out in front our clinics by the 20% who oppose abortion diverts the public’s attention from the national and global political struggles within and between nations around the control of women’s fertility.  

COMPARISON OF CAROL’S ASSUMPTIONS AND POPULAR ASSUMPTIONS ABOUT WHAT DRIVES POLITICAL DECISIONS ABOUT CONTRACEPTION AND ABORTION

CAROL’S ASSUMPTIONS                           POPULAR ASSUMPTIONS

Each SCOTUS Justice brings their own worldview, including religion and views on women’s rights, but each are heavily influenced by their reference group re affect of abortion regulations on population growth	Each SCOTUS justice bring own views of the morality of abortion and women’s rights, but may be responsive to public opinion
SCOTUS Justices first vote, then find the precedents and arguments which support their decision; their talents lie in their ability to rationalize any decision	SCOTUS justices are bound by precedent, but their talents lie in researching the law and creatively applying precedents with skillful argumentation.
Ruling U.S. elite disagree about the dangers posed by Europe and U.S. low birth rates.  The Right Wing calls it “the coming demographic disaster”. Liberals still favor access to abortion to keep TBR* low, but will accept policies to raise it.	The TBR* has nothing to do with the SCOTUS decision; it’s all about views on morality and women’s rights.
*Total Birth Rate	*Total Birth Rate
Right-wing politicians care nothing about the “right to life”.  They hide their true motives, to encourage birth for nationalistic reasons.	Right-wing politicians want to enforce their code of sexual morality on women.  They care nothing about the “right to life”.
Liberal politicians care nothing about “choice”.  The hide their motives, to solve social problems solely through controlling population, behind a façade of caring about women’s rights.	Liberal politicians care about women’s “choice”, and of course they do want women’s votes.
Liberal elite is not as worried about population explosion as it was, because demographic experts’ models now show world population growth leveling out mid-century, then slowly declining.	Population growth is not slowing down fast enough; we can’t change consumption ways or destruction of environment.

History and Possible Effect of SCOTUS upholding Texas Regulations

 Roe v. Wade made the decision to have an abortion between a woman and her doctor, but it included a “however” which gave a back door through which a woman’s right could be partially or completely negated by giving states the right to regulate the delivery of abortion.  Through a succession of decisions, reductions to women’s access to abortion have been ruled constitutional as long as they do not constitute “an undue burden”.  

Now, forty-plus years later, SCOTUS, if it were to rule the Texas regulations contested in Whole Woman’s Health vs. Hellerstedt constitutional, a handful of Texas abortion providers will remain open, and within a few years, most other states will pass similar regulations.  Access to abortion would then go back to pre Roe v. Wade levels.

Studious peering into my crystal ball reveals:

SCOTUS MAY FIND ONE, BUT NOT BOTH HB2 REGULATIONS CONSTITUTIONAL AS WRITTEN.

I don’t think SCOTUS will uphold both regulations.  You don’t need a crystal ball to know that as other states pass similar regulations, the present social upheaval in Texas would spread throughout the country, and women’s collective memory is not so short that they would allow such an abrupt return to pre Roe v. Wade situation without reviving the protests and the widespread civil disobedience like openly setting up illegal clinics, or learning how to do abortion ourselves.  Today, the online mail order distribution of the drug combination of mifepristone pills and misoprostol pills would enable thousands or even millions of women to self-abort, creating a new class of criminals, a minority of those women who have tried to abort themselves who have been arrested when they go to the hospital with complications.

SCOTUS WILL NOT STRIKE DOWN BOTH HB2 REGULATIONS. 

  

As much as I would like to think that SCOTUS will reject both the regulation requiring that a doctor performing an abortion have admitting privileges at a hospital within 30 miles and the regulation requiring a clinic to meet the standards of an Ambulatory Surgical Center, my ball  grew murky, but I could see some form of regulation in it.  The Total Birth Rate (TBR) is 1.9, and something more than requiring minors to get parental consent, cutting off funds for poor women, waiting periods and shaming consent procedures will be needed to raise it—at least a tad. 

SCOTUS could decide that, with some changes, one or both of the regulations do not create an undue burden for women seeking abortion.  This will allow some abortion clinics to stay open, so the TBR will stay low, but it will not go much lower.   I see some regulations, but I can’t see SCOTUS ordering modifications to the hospital admitting privilege requirement.   Most abortions in the U.S. occur in a clinic setting, because hospitals don’t like to do them, and don’t like abortionists.  Further, they don’t like abortion complications being treated at their hospital.   would necessitate some changes in the way hospitals run their businesses, and even SCOTUS can’t tangle with the nation’s hospitals.  Also, doctors would get very upset if their hands are tied to perform legal procedures.  Also, is most states passed the regulation, nearly all abortion clinics outside metropolitan areas would be eliminated, ergo, the hospital admitting privilege requirement is probably history. 

WHAT MODIFICATIONS TO THE AMBULATORY SURGIAL CENTER REGULATIONS CAN WE EXPECT?

My crystal ball was all cloudy when I asked this question, but, as an officer and board member of the National Abortion Federation and abortion provider for many years, I know there are many options a regulator has to choose from, and I would expect the Texas legislators to pick those that impose some burden on providers, but not as many as Ambulatory Surgical Center regulations, as presently written, would.  Also, SCOTUS no doubt is aware of the millions of dollars that the highly visible Planned Parenthood Association has received from women sending in checks each time PP is attacked; they may feel confident that Planned Parenthood could erect ASC-type clinics around the country.  If the barrier to having minimally adequate clinics is reduced to a mostly financial one, vigorous fund-raising on the part of all abortion providers would enable the majority of our nation’s clinics to keep their doors open.

 UH, OH, my crystal has returned to its ornamental state on my mantle. While we’re waiting for the decision, I’d love to hear about what you see in YOUR crystal ball (or tarot cards or in the stars).  After all, SCOTUS isn’t the only game in town for devious feminist thinking.