The Supreme Court Monday threw out Texas clinic regulations that would have greatly restricted access to abortion, handing a huge, rare victory to an abortion rights movement that has watched for decades as both state legislatures and courts make it harder for females to terminate their pregnancies.
In a 5-3 decision, the high court said the Texas law – which required abortion clinics to have, essentially, hospital-level facilities and a physician with admitting privileges at a nearby hospital – created an “undue burden” on women seeking legal abortions.
While Texas argued that its law was meant to protect women’s health by creating higher standards for care, “it is beyond rational belief that [the law] could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions,” Justice Ruth Bader Ginsburg wrote in a concurring opinion to Justice Stephen Breyer’s majority ruling.
The ruling not only vacates the Texas law but applies to other jurisdictions that have passed or are considering similar restrictions. Abortion foes had hoped for at least a split decision, which would have left the Texas law in place while leaving the overall matter ready for a full-strength court to consider after a ninth justice is confirmed.
But the 5-3 ruling – the first abortion ruling made with a short-handed high court – means abortion foes would have lost even if the late Justice Antonin Scalia, one of the court’s most conservative members, was still alive. And it means that even if Donald Trump – who has pledged to appoint anti-abortion jurists to the court – wins in November, the new justice would not have made the difference.
Pro-abortion rights activists, who have seen access to abortion increasingly restricted since the landmark 1973 Roe v Wade decision legalizing the procedure, were elated over the court’s definitive statement.
“If women’s rights are human rights, this is the epicenter,” says Ilyse Hogue, president of NARAL Pro-Choice America. “We are living in a moment of a cultural tipping point. You’ve got very extreme groups of people who have for 40 years thought of nothing other than finding any way they can to undo the advancement of Roe v Wade.”
While the ruling would not have been different with one more conservative judge, it does bring the issue to the forefront in the fall elections. Presumptive Democratic nominee Hillary Clinton called it a “victory for women,” while foes of abortion vowed to elect a sympathetic president.
“The stakes for the 2016 election could not be higher,” Marjorie Dannenfelser, president of the anti-abortion group the Susan B. Anthony List, said in a statement. “We must elect a pro-life president and safeguard today’s pro-life majorities in the House and Senate. Only with a pro-life Congress and White House can we begin to address the havoc wrought by the Supreme Court on America’s unborn children and their mothers.” Dannenfelser called the ruling “tragic” and said it would imperil women who would be subject to unsanitary conditions at clinics.
The Texas law was passed in 2013 but later put on hold as the Supreme Court deliberated. Had it gone into effect permanently, the Center for Reproductive Rights says, Texas – a state with 5.4 million women of reproductive age – would be left with at most 10 abortion clinics.
Foes of abortion have not been able to reverse the basic tenet of Roe, upholding the right to abortion. But activists have been very successful at making it much harder for a female to get the procedure. Laws vary by state but can include parental consent for minors, waiting periods and mandatory pre-abortion counseling. Three states require doctors to perform an ultrasound on pregnant women – a test the abortion research group the Guttmacher Institute says is medically unnecessary – and then show the image to women seeking abortions. Between 2011 and 2014, state legislatures enacted 231 abortion restrictions, according to the Guttmacher Institute.
Meanwhile, some opponents of abortion have sought to intimidate doctors and have demonstrated outside clinics, hoping to convince clinics to close rather than deal with the hassle.
In a pivotal 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court said states could put certain restrictions on abortion as long as they did not impose an “undue burden” on the patient. In the Pennsylvania case, the high court upheld laws saying women had to give “informed consent” and wait 24 hours before getting an abortion and that minors needed the consent of one parent. The court threw out a law requiring a married woman to swear she had first told her husband of her decision to end the pregnancy.
Pro-abortion rights supporters argue that such laws are particularly hard on poor women, who may not have the money or time to travel long distances to get an abortion, let alone go twice to accommodate a waiting period.
“Somehow legislatures have decided this is appropriate for them, when it really isn’t, says Elizabeth Nash, the Guttmacher Institute’s senior state issues associate. “I think they believe they can make this procedure so impossible to get that women won’t even try.”
The Texas law took a new tack: saying that its restrictions were not mean to make it harder for women to get abortions but rather to make sure the procedure was safer. The high court summarily rejected that argument.
“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,” the Supreme Court ruling said. Further, the high court noted, Texas could not, in oral arguments, provide a single instance of when the new requirement would have helped even one women receive better treatment.
Pointing to evidence showing abortion is “at least as safe” as other procedures performed in an outpatient setting, Ginsburg wrote that “it is beyond rational belief that [the law] H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”