In a 5-3 decision, the Supreme Court has struck down two challenged provisions of Texas’ abortion law, HB 2, the law that launched former Texas State Senator Wendy Davis to fame (or infamy, depending on your political leanings) for her pink-sneakered filibuster.

Previous court decisions had upheld HB 2’s ban on late term abortions. At issue here were two other provisions: 1) that abortion doctors have admitting privileges at a local hospital and 2) that abortion clinics have facilities comparable to outpatient surgical centers.

The State of Texas had argued that these provisions were necessary protections for women’s health, and the abortion clinics challenging the law had argued that they were an undue burden on the right to abortion and were designed to force clinics to close.

You can read the opinion here: Whole Woman’s Health vs. Hellerstedt. The vote breakdown is predictable: Justice Stephen Breyer wrote the opinion for the majority, and was joined by the other liberal justices, Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, plus the Court’s swing vote, Justice Anthony Kennedy. The Court’s conservative justices, Justices Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, dissented. Had Justice Antonin Scalia not died earlier this year, he would have presumably joined the dissenting judges, leading to a 5-4 decision, so that wouldn’t have been a different result, unless Scalia would have been more persuasive than the others in convincing Kennedy to join their side.

The majority of Justices agreed with the clinics. From Breyer’s opinion:

We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution. [citations omitted]

The Court’s opinion cites a list of evidence in the record from the District Court regarding the number of abortion clinics in Texas, how many had closed since the passage of HB 2, and how many were planning to close, in addition to the low rate of minor or serious medical complications during abortion procedures in Texas. In Whole Women’s Health, the District Court had ruled in favor of the clinics, blocking the two provisions of HB 2, but the Fifth Circuit Court of Appeals had overruled that decision.

The Court disagreed with the deference that the Fifth Circuit had shown to the Texas Legislature’s claims of medical necessity to support HB 2:

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.

Regarding the admitting privileges requirement, the Court did not find evidence to back up Texas’ claims:

We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.

We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

HB 2 did lead to abortion clinics closing in Texas, and “[t]hose closures meant fewer doctors, longer waiting times, and increased crowding.” While “increased driving times do not always constitute an ‘undue burden,'” the Court noted, “when viewed in light of the virtual absence of any health benefit,” that tipped the scales in favor of finding an undue burden.

The Court also found unpersuasive Texas’ argument that HB 2 would help prevent horrors like those found at Kermit Gosnell’s clinic:

[T]he dissent suggests that one benefit of H. B. 2’s requirements would be that they might “force unsafe facilities to shut down.”  To support that assertion, the dissent points to the Kermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He “staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal procedures; and inadequate emergency access for when things inevitably went wrong.”

Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. [citations omitted]

The Court likewise found Texas’ arguments in favor of the outpatient surgical center requirement unpersuasive, noting that there were higher mortality risks associated with home births attended by midwives, colonoscopies, liposuction, etc., none of which were subject to the same requirement.  “The record evidence thus supports the ultimate legal conclusion that the surgical-center requirement is not necessary.”

Texas Governor Greg Abbott issued the following statement in response to the ruling:

“The decision erodes States’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost. Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”

Follow Sarah Rumpf on Twitter: @rumpfshaker.


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