Texas Abortion Law Struck Down — Here's What To Read
In this morning's 5-3 ruling in Whole Woman's Health v. Hellerstedt, the Supreme Court found that Texas' HB2 — which required abortion clinics to adhere to same standards as surgical centers — is unconstitutional. Justice Kennedy joined Justices Ginsburg, Kagan, Sotomayor and Breyer in the majority. You can read the full opinion here.
What The Law Required
Passed in 2013, the Texas law requires clinics providing abortion services to meet the same building standards as walk-in surgical centers. And doctors performing abortions must have admitting privileges at nearby hospitals. Since the law was passed, the number of clinics providing abortion services in Texas has dropped to 19 from 42 — and could fall to ten if the state wins.
[NBC News]
The Critical Legal Question: Did HB2 Impose 'Undue Burden'?
In the lead-up to the arguments back in March, Hannah Levintova details for Mother Jones the crucial issue at stake: whether or not requiring abortion clinics to adhere to the same building standards as surgical centers imposes an "undue burden":
The court will have to decide whether these restrictions constitute an "undue burden" on a woman's right to get an abortion. This standard was established in the court's 1992 decision in Planned Parenthood v. Casey, which upheld a woman's right to terminate a pregnancy but allowed states to regulate this right, provided that state laws don't place an "undue burden" on women. If the justices uphold the Texas law, they could expand the "undue burden" standard, greenlighting the evolution of more Texas-like abortion restrictions across the country and cementing the ones that already exist: 22 states require abortion clinics to meet the standards of ambulatory surgical centers.
What Texas ('Hellenstedt') Argued In Court
Requiring all abortions to be performed in accredited surgical centers, [Attorney General Ken] Paxton told the court, would guarantee that women receive high-quality treatment while ensuring that Texas will not see a repeat of Kermit Gosnell, a Pennsylvania abortion doctor serving life in prison in the murder of three infants born alive after late-term abortions and in the death of a patient… Paxton also said the admitting privileges rule ensured that abortion doctors continued caring for patients who experience complications after an abortion — a claim professional groups disputed, saying most complications occur hours or days after the procedure, and women typically seek help from a hospital closest to their home, not the clinic.
What The Challengers ('Whole Woman's Health') Argued
In his turn at the lectern, [Solicitor General Donald] Verrilli tried to shore up the challengers' evidence on why so many Texas clinics had closed. He also commented on the question of whether the remaining clinics, not closed in the wake of the law, could handle the capacity. He said they could not — a point to which Kennedy responded favorably. And Verrilli finished his brief stint with a condemnation of the Texas law as the most onerous restriction on abortion rights that the Court had yet confronted, and argued that what was at issue in this case was whether women's right to abortion would "only really exist in theory and not in fact."
The Ruling Is The Best Result For Pro-Choice Advocates
According to Politico, there were four major options in "potentially the most significant abortion ruling in a generation" — a victory for abortion clinics, a victory for the Texas law, a rehearing of the case next year, or a punt back to the lower courts. This decision is the first:
Justice Kennedy sides with liberal justices in a 5-3 opinion and sets a national legal precedent, striking down restrictions in Texas and likely leading to similar rulings in other states.
[Politico]
And It Will Force Other States With Similar Laws To Change
As Slate's Mark Joseph Stern explains, the death of Texas's HB2 will have national impact:
The court's ruling will have a considerable impact on laws in many other states, including Mississippi and Louisiana, which have, like Texas, attempted to regulate abortion out of business. Breyer's opinion for the court makes clear that these laws—which have the inevitable effect of shuttering most clinics, forcing women to travel long distances to terminate their pregnancies—cannot generally pass constitutional scrutiny, because they impose a "substantial obstance" on the exercise of "a constitutionally protected personal liberty."
[Slate]
