Mary Tuma
The High Court’s most important abortion ruling in more than two decades struck down two of the most stringent regulations on abortion providers contained in Texas’ H.B.2, which lawmakers passed in 2013 over Wendy Davis’ famous hours-long filibuster of the bill. The Legislature mandated that abortion doctors have hospital admitting privileges, which most providers can’t get, and that clinics adhere to hospital-like building standards that would require multi-million dollar facility upgrades that threatened to shutter all but about 10 of the state’s abortion clinics.
The court’s liberals, joined by swing-vote Justice Anthony Kennedy, ruled 5-3 Monday in calling those requirements an “undue burden” on a woman’s right to choose – in large part because the law appears to serve no other purpose than to shutter clinics and block abortion access. “We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” Justice Stephen Breyer wrote for the majority. The law, he wrote, “places a substantial obstacle” in the path of women seeking abortion.
Nancy Northup with the Center for Reproductive Rights, which spearheaded the legal challenge to Texas' law, told reporters in a conference call after the decision, “Without question today’s ruling is a game changer in what has been an unrelenting assault on women’s rights not just in Texas but across the country.”
While the Supremes had stalled the building-standards provision from going into effect last year, the state rolled out the admitting privileges component of the law in 2014, which led to the shuttering about half the state’s abortion providers.
The majority opinion highlighted the absurdity of the admitting-privileges requirement. As the Society of Hospital Medicine told the court this year, hospitals often condition admitting privileges on providers reaching a certain number of admissions each year. One El Paso abortion provider, for instance, testified that during the past 10 years, more than 17,000 abortions were performed at the clinic yet not a single patient had to be transferred to a hospital for emergency treatment, much less be admitted.
“In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit,” Breyer wrote.
As for the requirement that abortion providers adhere to standards for so-called ambulatory surgical centers, Justice Ruth Bader Ginsberg pointed out that lawmakers haven’t required that doctors perform other, more risky procedures in such an environment – like tonsillectomy, colonoscopy, and in-office dental surgery. The majority opinion reaffirms the ruling of a lower court judge that oversaw the trial in the case — that not only is abortion among the safest medical procedures, but that there's a "death of credible evidence" the law would make women undergoing the procedure any safer.
Had the court let Texas’ law stand, it’s estimated some 1 million women in the state would have lived more than 100 miles away from the nearest clinic. The impact, critics said, would have effectively made abortion inaccessible for women at the bottom rungs of the socioeconomic ladder who didn’t live in one of the state’s urban areas.
Texas Attorney General Ken Paxton responded to the ruling with this prepared statement: “HB2 was an effort to improve minimum safety standards and ensure capable care for Texas women. It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives.”
Critics of the law had worried that a decision in Texas’ favor would essentially give states carte blanche to regulate safe, legal abortion out of existence through so-called Targeted Regulation of Abortion Providers laws, or TRAP laws. In her concurring opinion, Ginsberg said such laws, like Texas’, that do little or nothing to safeguard the health of patients “cannot survive judicial inspection.
In her opinion, Ginsberg highlighted what was at stake in the case: “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners … at great risk to their health and safety.”
Northup says she's still studying the majority opinion to determine how far reaching it really is, but told reporters she and others will likely use it to challenge what she calls other “sham” restrictions across the country – like arbitrary wait times, medically unnecessary ultrasounds, or state-mandated scripts doctors are forced to read to patients before performing the procedure.
“We expect to rely on it (the ruling) heavily in our cases going forward,” Northup said. “It’s hard to see how similar regulations could stand.”
Meanwhile, abortion providers in Texas say they’ll now start the slow process of rebuilding the women’s healthcare network that was decimated by H.B.2. According to Amy Hagstrom Miller, CEO of Whole Women’s Health, most providers that were shuttered by the law have since sold their buildings, let leases and state licenses lapse, or had doctors and staff move on to other work. “It will take a while to rebuild the care infrastructure that served multiple women across the state,” she said.
You can read the full ruling and dissents by the conservative justices here.
