The U. S. Supreme Court on Monday invalidated two Texas provisions that would have closed at least seven of 17 abortion clinics in the state, saying that neither provision had a positive effect on women’s health, and that both existed primarily for the unconstitutional purpose of restricting access to abortion. Some are calling the 5-3 ruling one of the most important Supreme Court rulings on the right to abortion in almost 25 years.
Both provisions were part of a new body of legislation known generally as TRAP laws: Targeted Regulation of Abortion Providers.
The ruling in Whole Woman’s Health v. Hellerstadt will affect states’ powers generally to limit women’s access to pre-viability abortion: it throws into question the validity of laws in at least 24 other states with similar requirements.
What the provisions mandated
At issue in the case were two requirements in Texas Law HB 2.
First, the law required that doctors working at abortion clinics have admitting privileges (be considered on-staff with a right to admit a patient) at local hospitals. Second, the law required that buildings housing the clinics meet the standards of ambulatory, or outpatient, surgery centers in the state. These standards include a specified width of hallways, temperature controls, and staffing requirements.
Both provisions are difficult and expensive for clinics to meet and, advocates of abortion access successfully claimed, unnecessary for the health and welfare of women seeking care.
Whole Woman’s Health, a privately owned company that offers gynecologic health care to women in several states, provides abortions. According to its website, the company had to close two clinics in Texas – one in Austin, the second in Beaumont – as a result of HB2.
An important win for those who support choice
The decision to invalidate Texas law was not entirely unexpected. Justice Kennedy – thought to be the potential swing vote – has frequently sided on behalf of abortion rights when examining state restrictions on pre-viability access, and asked questions at oral argument that indicated he was suspicious of Texas’ intent in passing HB2.
Certainly, the Texas case has been in the spotlight ever since Wendy Davis’ failed filibuster on the floor of the Texas House opposing HB2, the law overturned with today’s decision.
But even though those interested in abortion rights and abortion restrictions were holding their breath this morning, the decision is not much of a surprise. Although Justice Alito argues otherwise in his spirited dissent, today’s decision is in keeping with a long line of Supreme Court decisions regarding access to reproductive health care and abortion.
The historical record
In its 1973 landmark decision, Roe v. Wade, the Court balanced the legitimate interests of the state in the health and welfare of its citizens against the legitimate interests of women and their physicians, in private decision-making regarding abortion.
Following on the heels of decisions that expanded women’s access to birth control (Griswold v. Connecticut and Eisenstadt v. Baird), the Court in Roe established a jurisprudence that gave women more rights to decision making regarding termination in the first trimester of pregnancy, and the state more power to regulate abortion in the final trimester – leaving the middle 12 weeks of pregnancy in a relative muddle, in terms of regulatory power.
Since then, anti-abortion activists have focused energy on enacting state level restrictions on abortion, while also using direct action to interrupt women’s access to clinics. As Joshua Wilson, assistant political science professor at the University of Denver, has chronicled, efforts to restrict front-of-clinic protests have been largely successful, as pro-choice advocates framed abortion access as part of a right to health care and argued successfully that clinic entrances cannot be blocked.
In the absence of powerful avenues for direct action protest, state legislatures have been aggressive in passing laws that limit women’s access. These laws have, since the 1980s, been frequently at issue before the Supreme Court.
Among the provisions upheld by the Court are extended waiting periods prior to termination and laws requiring that minors have either parental or judicial consent prior to abortion. The Court has also upheld laws restricting both state and federal funds for the procedure.
The Court has rejected, however, several other provisions limiting women’s access to abortion. In particular, the Court has held that spousal consent and notification requirements constitutes, in the words of Justice O’Connor in Planned Parenthood v. Casey, “an undue burden” on the right to abortion established by Roe.
The question before the Court Monday was whether the Texas laws constituted an undue burden or legitimate state protections on women’s health.
Court didn’t agree that law protected women’s health
Justice Breyer’s opinion makes clear that the Court was not swayed by Texas’ argument that these laws were passed in order to protect women’s health.
TRAP laws, which were skewered by John Oliver in an episode, fared only a little better with the Court. TRAP laws, Breyer wrote, provide “few, if any, health benefits for women.” Breyer’s opinion notes that most pre-viability abortions are not surgical. Ginsburg’s concurrence further specifies that complications from non-surgical abortion are quite rare in comparison to complications from childbirth or from surgeries not related to reproductive capacity.
Abortion rights advocates have been concerned, and both global and historical experience bears them out, that when clinics close, women do not decide not to abort. Rather, they choose, by necessity, less safe options for abortion. Ruth Bader Ginsburg’s concurring opinion in Whole Woman’s Health makes it clear that she found this argument persuasive.
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.
Ginsburg’s concurring opinion also makes clear the scope of today’s ruling. Had the conservative justices been in the majority, the TRAP laws in the Fifth Circuit would have withstood constitutional scrutiny. But a conservative majority would only have impacted Fifth Circuit jurisdictions.
Today’s holding on behalf of Whole Woman’s Health – striking down these Texas laws – has wider impact. It has the potential to touch all states with TRAP laws in place or pending. As Ginsburg makes clear, Roe lives another day – TRAP laws do not.