Supreme court strikes down strict Texas abortion law aimed at closing clinics
Last modified on Monday 27 June 2016 15.37 BST
Major victory for reproductive rights activists paves way to overturn dozens of measures that curtail access to abortion providers across the country
The US supreme court on Monday struck down one of the harshest abortion restrictions in the country and potentially paved the way to overturn dozens of measures in other states that curtail access, in what might be the most significant legal victory for reproductive rights advocates since the right to abortion was established in 1973.
The 5-3 ruling will immediately prevent Texas from enforcing a law that would have closed all but nine abortion clinics. But in a coup for abortion rights supporters, the court also in effect barred lawmakers from passing health measures backed by dubious medical evidence as a way of forcing large numbers of abortion clinics to close.
Justice Stephen Breyer wrote the opinion for the majority and was joined by justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, andAnthony Kennedy, whose support was key to determining if the liberal or conservative bloc of the court would prevail.
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” Breyer’s opinion read. “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.”
The case began in 2013, when Texas Republicans, on the heels of an 11-hour filibuster by state senator Wendy Davis, passed one of the most expansive abortion restrictions in the country. The bill, known as House Bill 2, requires abortion providers to have staff privileges at a hospital within 30 miles of the clinic and requires clinics to meet expensive, hospital-like building and equipment standards.
Lawmakers claimed these were critical safety measures. But abortion providers argued that HB 2 was a gambit designed to shut clinics down in large numbers. On the day the admitting privileges requirement took effect, in November 2013, the number of Texas abortion clinics plummeted from 41 to 22. Today, there are 18. Had the requirement for clinics to meet hospital-like rules gone into effect, another nine would have shut down. Last year, the four liberal justices plus Justice Anthony Kennedy blocked that requirement until the court could resolve the case.
Around the country, highly similar laws in Alabama, Arkansas, Louisiana, Mississippi, Oklahoma, Tennessee and Wisconsin threatened to shutter another 13 abortion clinics.
Monday’s ruling could give abortion providers in those states ammunition to have those laws struck down in the lower courts.
At the heart of this case was a two-decade old dispute over how strictly states can regulate abortion, so long as they claim to be doing so for health purposes. A 1992 supreme court decision, Planned Parenthood v Casey, gave states the right to restrict abortion to protect women’s health as long as it didn’t create an “undue burden” for women seeking abortion. “An undue burden exists,” that decision reads, “and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion.”
But the court never fully clarified the meaning of “undue burden”. Texas abortion providers argued that a law is an undue burden if it is medically unnecessary. Attorneys for Texas argued that courts should defer to the legislature’s knowledge of what is medically unnecessary, and a law is only an undue burden if it significantly impacts abortion access.
On Monday, the majority ruled that courts should in fact scrutinize the medical evidence behind burdensome abortion restrictions.
In 2014, US district judge Lee Yeakel sided with Whole Woman’s Health and ruled key parts of HB 2 unconstitutional. A three-judge panel from the fifth circuit court of appeals, the most conservative circuit in the US, overturned his decision in June 2015. The supreme court agreed to take up the case in November and heard oral arguments on 2 March 2016.
Abortion clinics and their allies have mounted significant evidence that HB 2’s restrictions were both medically unnecessary and “devastating” to abortion access, in the words of Amy Hagstrom Miller, who runs the group of abortion clinics, Whole Woman’s Health, that led the charge to overturn Texas’s law.
Briefs to the court from leading medical groups, such as the American Medical Association, emphasized that hospital admitting privileges are generally reserved for doctors who treat patients in an inpatient setting. Because abortion is an outpatient procedure with a low complication rate – the risk of a serious complication is between 0.05% and 0.2% – abortion providers rarely meet a hospital’s particular requirements.
In March, researchers with the Texas Policy Evaluation Project at the University of Texas-Austin found that with parts of HB 2 in effect, the average number of miles that many women traveled to get an abortion nearly quadrupled. If the law were fully in effect, Texas’s nine remaining clinics would have been clustered in Dallas, Fort Worth, Austin and San Antonio, and there wouldn’t have been a single clinic for 500 miles between San Antonio and the border with New Mexico.
Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas dissented from Breyer’s opinion, with Thomas indicating that he would have voted to uphold the entire law. Roberts and Alito would have remanded the case back down to the lower courts for additional findings.
Following the death of Justice Anontin Scalia, who likely would have voted to uphold the law, many observers expected the court to deadlock in this case along ideological lines. A split would have upheld the fifth circuit court of appeals decision of June 2015 and forced all but nine clinics in Texas to close.
A split also would have sent strong signals that abortion providers would lose their ongoing case against an admitting privileges law in Louisiana, which is also in the fifth circuit with Texas. That law threatens to close two out of four Louisiana abortion clinics; the provider with admitting privileges at a third abortion clinic has said he would quit and leave the state with only one clinic.