Women's reproductive health is once again in the national spotlight. In March, the Supreme Court heard oral arguments in the case, Whole Woman's Health v. Hellerstedt (formerly Whole Woman's Health v. Cole, et. al) a mammoth abortion case reviewing the validity of Texas abortion clinic regulations specifically designed to protect maternal health.
Both sides made different arguments in the name of "maternal health." Supporters of the law argue that it is beneficial and necessary for the health of women who are undergoing an abortion to require abortion clinics to follow basic medical standards, and for the abortion provider to have hospital admitting privileges at a nearby hospital in case of emergency complications.
Opponents of the law, on the other hand, argue that it is detrimental to maternal health for abortion clinics to be held to the same medical standards as other surgical centers and for abortion providers to be obligated to secure admitting privileges. As some abortion clinics and providers would be unable to meet these standards, opponents of the law argue that clinics would be forced to close and, consequently, there would be fewer abortion providers available to women. This, they argue, imposes an "undue burden" on the right to abortion.
During the oral arguments, however, some of the Justices pointed out the lack of actual evidence on the record that the Texas law is directly responsible for abortion clinic closures and related to any decrease in abortion access for women.
As this case sits before the Supreme Court, an underlying question surfaces: What exactly is "maternal health," and how has it been defined legally by the courts in the abortion context? Although the definition of maternal health is not under direct question in the current Supreme Court case, it is nonetheless essential to the present debate to discuss the meaning of maternal health, and to consider whether or not it has not been adequately defined by the courts and legislatures for the practical purposes of abortion-related law.
In Roe v. Wade (1973), the Supreme Court established that the government may regulate and even prohibit abortion, as long as an exception is made "where it is necessary, in the appropriate medical judgment, for the preservation of the life or health of the mother." This exception to abortion laws for maternal health is called the "maternal health exception."
But what does "health of the mother" mean?
Roe explicitly instructed that its holding be "read together" with the definition of health as stated in the Supreme Court case, Doe v. Bolton (1973). That case defined maternal health as a state of maternal well-being determined, not solely by medical considerations, but "in light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well being of the patient. All these factors may relate to health."
What sort of "factors relevant to well-being" can be used to avoid abortion regulations by invoking the maternal health exception? According to the Court in Roe, the woman's "health" can be determined by factors such as:
The language used by the Supreme Court in Roe and Doe has allowed abortion providers to resort to a wide variety of reasons to successfully tap into the maternal health exception.
In Planned Parenthood v. Casey (1992), the Supreme Court asserted that women's reliance on abortion to live the kind of social and economic life they desire is a legitimate factor to be considered in determining what constitutes women's health/well-being for purposes of abortion law. The Casey Court asserted that "people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion…. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." Here, the Court failed to take the opportunity to clarify the definition of maternal health, and the maternal health exception remained vague and all-encompassing.
Consequently, the perimeters of the right to abortion itself are undefined and expansive. It is the subjective nature of the definition of maternal health that has given the right to abortion its reach and power. Since Roe, the broad definition of maternal health and the subsequent unrestrained right to abortion have resulted in increased difficulty in enacting meaningful abortion policies and the striking down of reasonable abortion regulations.
When it comes to the law, objective and functioning definitions are necessary in order for policies to be useful and practically applied in real situations. If key legal terms are not clearly defined, there are no "teeth" to a law, and it is left open to endless interpretation.
As it did in Casey, the Supreme Court has an opportunity in the current case to define maternal health with greater clarity and draw boundaries to contain the ever-expanding right to abortion… or to do just the opposite.