Thanks to the ruling, many clinics can start the process of reopening their doors, which abortion providers say will be a "daunting task." While it will take time to rebuild the women’s healthcare network that was decimated by H.B.2., the ruling does open up one immediate course of action, lawyers say: challenging other ideologically-driven laws passed by anti-abortion lawmakers that critics and most experts say have virtually no medical benefit.
“We expect to rely on it (the ruling) heavily in our cases going forward,” said Nancy Northup with the Center for Reproductive Rights, which spearheaded the legal challenge to Texas' law. Referencing other “similarly deceptive” abortion laws that remain on the books in Texas and elsewhere, Northup said, “It’s hard to see how similar regulations could stand.”
That’s because Monday’s majority ruling employed what was apparently a novel concept for some courts evaluating state restrictions on abortion: in deciding whether a law is an unconstitutional burden on a woman’s right to choose, you have to consider actual science and research and experts (basically, facts), not just what state lawmakers claim they were trying to accomplish. In doing so, pro-choice attorneys say, the Supremes just strengthened the standard by which lower courts are now supposed to evaluate similar abortion restrictions.
In its ruling Monday, the Supreme Court knocked down provisions of Texas law requiring abortion doctors to get hospital admitting privileges and forcing clinics to make multi-million dollar upgrades to become so-called ambulatory surgical centers – regulations that medical experts told lawmakers from the beginning would do virtually nothing to safeguard patient health and only shutter clinics. (In fact, most experts warned that the law would actually harm women, which researchers now say appears to be the case.) Anti-abortion lawmakers passed the bill anyway, claiming patient safety to be their motive and justification.
While the federal court judge in Texas who heard the case blocked the law, citing a “dearth of credible evidence” that the law made any women safer, the U.S. Fifth Circuit Court of Appeals, arguably the country’s most conservative federal appeals court, let H.B.2 stand. Its reasoning was stunning for a couple of reasons. First, the appeals court conceded that the nearly 1 million Texas women who would live 150 miles or more from an abortion clinic under the law would face a legitimate barrier, but said that that wasn’t “a large fraction of women," therefore the law wasn't unconstitutional. Second, the Fifth Circuit judges insisted it wasn’t their job to determine whether the facts even supported the legislature’s stated justification – that H.B.2 was designed to make women safer, not, say, to shut down a whole bunch of abortion clinics. As the Fifth Circuit put it:
“It is not the courts’ duty to second guess legislative fact-finding, improve on, or cleanse the legislative process by allowing relitigation of the facts that led to the passage of a law. . . . Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to prove that the objective of the law would be fulfilled.”The ruling seems to assume that politicians always pass laws based on facts. The Atlantic described the opinion this way: “a court is obliged to believe anything the state says; if Texas says the unnecessary is necessary, then that’s it.”
But not anymore, not under the new precedent set by the Supreme Court Monday. In his opinion, Breyer called the admitting privileges and ambulatory surgical center requirements unconstitutional because neither “offers medical benefits sufficient to justify the burdens upon access that each imposes.” In her concurring opinion, Justice Ruth Bader Ginsberg said flatly that laws create barriers to safe and legal abortion that have no medical justification “cannot survive judicial inspection.”
Susan Hays, a Texas attorney on the front lines of the state’s abortion battles, told MSNBC yesterday that there are "a lot of other abortion restrictions on the books in Texas that ought to be challenged,” calling H.B.2 “a Christmas tree bill” full of unnecessary restrictions that she says harm the health and safety of women. (Hays represents minors who have to seek a judge’s permission for abortion because of either parental neglect or physical or emotional abuse, a process that lawmakers made even harder last legislative session.)
Jeffrey Hons, president and CEO of Planned Parenthood South Texas, told us yesterday that providers and pro-choice attorneys are “gearing up for the repeal work that has to be done.” He said there are a series of laws and restrictions that have made abortion more difficult for women in Texas, including provisions of H.B.2 that weren't overturned by Monday's Supreme Court decision.
For instance, there’s the law Texas passed in 2011 requiring doctors not only to perform what experts call a medically unnecessary ultrasound 24 hours before the procedure (requiring yet another clinic visit for women), but also forces providers to show patients the ultrasound image and play the fetal heartbeat. The Texas federal court judge who attempted to block the law called it unconstitutionally vague and said, “The act compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen.” (The Fifth Circuit upheld the law and the case died after challengers decided against taking it to the Supreme Court.)
“There’s an enormous amount of appeal work to be done in Texas,” Hons said. “The Supreme Court just gave us a much more expansive and proactive tool kit.”