In a huge victory for the pro-choice movement, the Supreme Court voted 5-3 Monday to strike down two major anti-abortion provisions that were part of an omnibus anti-abortion law Texas passed in 2013.
The court's ruling in Whole Woman's Health v. Hellerstedt also strikes a blow to a strategy by the pro-life movement to limit abortion access incrementally, through state laws.
To provide abortions at any stage of pregnancy, the provisions forced doctors to have "admitting privileges" with a nearby hospital (which are difficult to get for abortion providers specifically), and forced clinics to undergo often expensive renovations to become "ambulatory surgical centers," which haven't been demonstrated to make abortion safer (though abortion is already quite a safe medical procedure.)
While pro-life advocates said these laws made abortion safer for women, their most significant effect was forcing roughly half of the state's abortion clinics to close. The overwhelming consensus from doctors is that the laws had no medical benefit, and actually made abortion less safe because they forced quality clinics to close for no compelling medical reason.
The central constitutional question was: Did the policies put an "undue burden" on women when they are forced to drive hundreds of miles because their nearest clinic has closed due to regulatory hurdles?
The Court found that it did.
"Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution," read the decision.
"I am beyond elated," said lead plaintiff Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, in a statement on Monday. "Every day Whole Woman’s Health treats our patients with compassion, respect and dignity—and with this historic decision, today the Supreme Court did the same. We’re thrilled that justice was served and our clinics stay open."
What the opinion said
The majority opinion, authored by Justice Stephen Breyer, said that neither restriction "offers medical benefits sufficient to justify the burdens upon access that each imposes."
In short, there was no good evidence in the record to support Texas's key argument: that admitting privileges and ambulatory surgical centers make abortion safer for women. Abortion already has an extremely low complication rate, and performing it in surgical centers doesn't change that. Furthermore, admitting privileges do nothing to give women easier access to a hospital in the rare event of a major complication.
Breyer noted that HB2 was basically a solution in search of a problem. Before HB2 was passed, abortion in Texas had been "extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure." And even Texas's own solicitor general admitted that there was no evidence in the record of even one woman who would have gotten better treatment as a result of the laws.
Meanwhile, the majority found, there was good evidence that the requirements put a "substantial burden" on women seeking abortion. Under the landmark 1992 Planned Parenthood v. Casey decision, which upheld Roe v. Wade but weakened its legal standards, states were allowed to pass laws designed to convince women to change their mind about having an abortion. But, crucially, those laws couldn't actually stand in women's ways and present an "undue burden" to accessing the procedure.
"In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts," the majority opinion read. "Those closures meant fewer doctors, longer waiting times, and increased crowding."
Many women also had to drive much farther to reach their nearest clinic than they would have before HB2.
Increased driving distances alone don't necessarily constitute an "undue burden" under Casey, the opinion noted: "But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s 'undue burden' conclusion."
The Court also found that there was just no way the nine remaining surgical centers could do the work 44 clinics had done before HB2 was passed. The centers would have to increase their capacity about fivefold, and the state didn't present evidence that this would be feasible.
As Ruth Bader Ginsburg put it in her concurring opinion, "It is beyond rational belief that H. B. 2 could genuinely protect the health of women." She added that women may resort to "unlicensed rogue practitioners" if abortion is severely limited, "at great risk to their health and safety."
Dissenting were Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts. Thomas was the only justice who would have actually voted to uphold the Texas laws; the other two would have remanded the case back to the Fifth Circuit Court of Appeals for additional findings.
The dissenting justices argued that the majority's opinion had procedural problems, and that it "simply disregards basic rules that apply in all other cases." Thomas wrote separately to argue that the Court has a "habit of applying different rules to different constitutional rights — especially the putative right to abortion."
Background of the case
If the Supreme Court hadn't intervened, a ruling from the Fifth Circuit Court of Appeals would have immediately closed 10 clinics in the state last year, leaving just nine ambulatory surgical centers to do the work that more than 40 clinics used to do.
The Fifth Circuit had overturned a District Court injunction blocking the admitting privileges and ambulatory surgical center requirements from going into effect. The Fifth Circuit did allow a limited exception to the admitting privileges requirement for one clinic in McAllen, Texas, but it only applied to one 75-year-old physician, who would have then become the only abortion provider in four counties.
Pro-life leaders had aimed for a 5-4 decision in their favor, which could have meant a sweeping, nationwide validation of anti-abortion laws like the ones in Texas. But with the death of Justice Antonin Scalia and the composition of the court, a 4-4 split was the most pro-life advocates could hope for.
Such a split would have still spelled trouble for abortion providers in Texas. It would have probably meant that those 10 clinics would close for good. It also probably would have spelled trouble for Louisiana abortion providers, since Louisiana is also in the Fifth Circuit's jurisdiction and has passed similar laws (which are also currently blocked by the Supreme Court). And it would have meant inconsistent nationwide policy, where some states are allowed to pass laws like these and others aren't.
This ruling should be able to prevent other states from passing admitting privilege or ambulatory surgical center laws, which are some of the most popular tools that anti-abortion lawmakers currently use to limit the procedure at the state level.
It should also invalidate similar laws that other states have already passed — particularly Louisiana, where the Supreme Court recently blocked similar restrictions, and Mississippi, where the last remaining abortion clinic in the state has been threatened with closure. But that process is not automatic and will have to be litigated, since each state has slightly different laws and circumstances. The clinics in those states will remain open while the litigation continues.
The decision could jeopardize other anti-abortion laws among the hundreds that states have passed in the past five years, although the extent of this isn't yet clear. For now, many other anti-abortion provisions remain law, including in Texas. Other provisions in HB2 still stand — including a ban on abortion after 20 weeks, and severe restrictions on how medication abortion is dispensed.
Justice Anthony Kennedy, in typical fashion, was the Court's swing vote. He's voted to uphold abortion rights in the past, more or less, but it's well known that he generally opposes abortion as a practice. In this case, however, he voted for abortion access.
