To recognize the tyranny of distance: A spatial reading of Whole Woman’s Health v. Hellerstedt

Abstract

Distance—physical, material distance—is an obviously spatial concept, but one rarely engaged by legal or feminist geographers. We take up this oversight in relation to the 2016 U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt, which adjudicated the constitutionality of a Texas law that imposed new regulations on abortion providers. Because half of the state’s abortion providers were unable to meet these regulations and thus closed, the distance that many Texas women had to travel for abortion services increased dramatically. In part because of these increases, the Supreme Court ultimately determined that the Texas laws imposed an unconstitutional “undue burden.” Bringing together case law and ethnographic data, this article traces the process by which distance is made legally “legible” in the context of reproductive injustice. In so doing, it confronts more uneasy realities of distance, including the discursive dismissal of social and literal immobility and isolation; contradictory readings of “emptiness”; and the material spatiality of distance through the nonplace-ness of rural areas. Together, these factors illuminate a more significant distance, namely the epistemic and social distance that exists between the legal performance of distance in litigation and the embodied traversal of distance by a woman seeking an abortion in Texas. Prioritizing rural distance as material, legal and gendered, our work engages and augments the nascent field of feminist legal geographies. It likewise challenges legal geographers’ insistence on urban space by uncovering the ways in which even the relative “emptiness” of distance is intimately consequential. Finally, this paper makes connections between the exercise of the abortion right and the exercise of other rights that implicate distance, most notably the right to vote. Just as abortion regulations have often had the effect of requiring women to travel farther for abortion services, voter ID laws have the effect of requiring voters to travel to a public agency in order to secure the requisite identity document. Other voting regulations and state and local voting practices may similarly impose spatial burdens on voters. We thus assert that what Whole Woman’s Health reveals about making distance legally cognizable finds ready legal application in other contexts.