It’s almost impossible to overstate how terrible the past 12 months have been for abortion providers: They’ve seen maliciously edited videos intended to deceive people into thinking abortion clinics sell baby parts; a huge spike in harassment and threats directed at providers and medical researchers; the longest sustained terrorist shoot-out in American history, resulting in three people being killed and nine injured at a Colorado Springs Planned Parenthood; seemingly endless congressional investigations that have produced invasive subpoenas into providers and their allies’ practices; state investigations into abortion funding and fetal-tissue disposal; scores of new anti-abortion legislation; and more.
It’s been a terrible, horrible, no good, very bad year — until today. For the first time in what seems like eons, abortion providers and the patients they serve were victorious. And it was a huge victory indeed.
Today, the Supreme Court decided 5-3 that two provisions of a monster Texas law that would have ultimately reduced the number of abortion clinics in the state — the second largest both geographically and in terms of population — from over 40 to just eight or nine. The decision was written by Justice Stephen Breyer (joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan), and it was a resounding rejection of state legislatures meddling in women’s health without any medical reason for doing so.
Three years ago, Texas rushed through an extreme sham of an abortion law. Among other provisions, the law required that all doctors working at abortion clinics obtain admitting privileges at a nearby hospital and that all clinics meet the heightened facility standards of an ambulatory surgical center, or miniature hospital. These laws may sound sensible on their face — after all, who doesn’t want to promote safety? But as countless medical organizations stated and the Court wrote today, neither provision has anything whatsoever to do with safety. Rather, they are intended to close down abortion clinics and stop women from having abortions.
Today’s decision recognized these laws as nothing more than fronts to shut down clinics and curtail women’s constitutional rights. Texas had urged the Supreme Court to defer to the state legislators’ “expertise,” but the Court did nothing of the sort. Instead, the Court said it is appropriate for federal courts to determine the facts when constitutional rights are at issue, and the facts here are clear: There was no scientific basis for these laws. Rather, abortion was already one of the safest medical procedures there is long before Texas’ new restrictions. As Justice Breyer noted, abortion is far safer than child birth, colonoscopies and liposuction, and Texas had no evidence whatsoever that there was a single woman anywhere in the country who would have been helped had its laws been fully in effect.
Balanced against the fact that the law had no legitimate medical purpose was the huge burden it imposed on abortion access in the state. The number of clinics would decrease by over 75 percent, some Texas women would have to travel hundreds of miles to have an abortion, the surviving clinics would not be able to expand to accommodate increased numbers and women would be subject to needless requirements.
With the law having no medically sound purpose while imposing a very serious burden on Texas women choosing to have an abortion, the Supreme Court found it to be an “undue burden,” which is unconstitutional under the Court’s 1992 Planned Parenthood v. Casey decision.
The big issue after today’s decision is what it means going forward — for Texas, for other states and for the Court.
For Texas, the legal answer is clear, even if the practical effect is not yet. The legal answer is that both provisions are struck down and cannot be applied in any circumstance in the state. Because the Court had put the lower court’s decision (that had approved the provisions of the Texas law) on hold while it considered the case, the state now has almost 20 open clinics. And those clinics will remain open. The other 20-plus clinics that have closed since the law was originally passed cannot immediately re-open, though — not because of the law, but because of practicalities of hiring, leases, the availability of doctors, etc. You can close a clinic in an instant; re-opening one, especially one that has been closed for a year or more, is not so easy. Texas providers, however, will be working diligently to restore access for Texas women as soon as possible.
For the rest of the country, the Court’s decision makes clear that the “undue burden” test has meaning: something many lower courts were unclear about until today. A state wishing to pass a law restricting abortion cannot seriously burden women’s ability to get an abortion without a sound medical reason for doing so. There are many other states that have similar laws, and those that are currently being challenged will now be subject to this standard. The Court cited two challenges in particular, in Alabama and Wisconsin, and did so in a way that indicates that it approves of the lower court decisions that struck down those states’ similar laws. For other states, lawyers and clinics will have to carefully assess the reasons the state offered for the laws and the particular effect the laws have for abortion access in their state before deciding whether to try to use today’s case to strike down that state’s laws.
Furthermore, today’s decision is possibly another signal that, with Justice Antonin Scalia no longer on the bench, the Supreme Court has become a more liberal body. To be sure, the Court still awaits its elusive ninth justice, but in the meantime, in the past few days alone Justice Kennedy has joined the four liberals on two of the great social issues of our time: affirmative action and abortion. It’s possible that the Court’s impenetrable liberal bloc has now become more convincing to Justice Kennedy than the Scalia-less conservative wing.
Whatever the future holds, today’s victory for abortion rights could not have been sweeter for a community that has been beleaguered for years. The struggle will continue, as anti-abortion forces will certainly not give up. But after today, abortion providers have yet another powerful Supreme Court precedent by their side.