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Monday, June 17, 2024 | Back issues
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Supreme Court Kills Texas Abortion Law

WASHINGTON (CN) — The Supreme Court dealt a blow to abortion restrictions Monday, striking down a Texas law that set impossible-to-meet standards for clinics to operate in the state.

Whole Woman's Health led the legal challenge to the law, House Bill 2, which specifies abortions must be performed in hospital-style surgical centers and can only be performed by doctors with admitting privileges to hospitals within 30 miles.

With few abortion providers able to meet the new regulations, the Supreme Court blocked Texas from implementing the law pending its review.

That review found Texas' regulations unconstitutional today.

"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. "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."

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan concurred in the 40-page majority holding.

They said Texas failed to show that its regulations held any medical benefit to women.

"When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case," Breyer said, referring to the requirement about admitting privileges.

Against the questionable benefits of such a regulation, Breyer noted that the obstacles it puts in the way of a woman's treatment choices are "substantial."

Breyer found the evidence sufficient to show "that the admitting-privileges requirement led to the closure of half of Texas' clinics, or thereabouts."

"Those closures meant fewer doctors, longer waiting times, and increased crowding," he added. "Record evidence also supports the finding that after the admitting-privileges provision went into effect, the 'number of women of reproductive age living in a county ... more than 150 miles from a provider increased from approximately 86,000 to 400,000 ... and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000.'"

Supporters of the abortion providers briefed the court on why the lack of medical necessity also made the admitting-privileges requirement impossible to meet.

"During the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital," one brief quoted in the opinion says. "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."

As for the surgical-center requirement, Breyer cited the District Court's findings "indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary."

"The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication," Breyer wrote. "That is because, in such a case, complications would almost always arise only after the patient has left the facility. The record also contains evidence indicating that abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements."


Breyer emphasized that just five peopled died from abortions in Texas between 2001 and 2012.

"That is to say, one out of about 120,000 to 144,000 abortions," the justice added.

"Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient's own home," the decision continues. "Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion."

Liposuction is another outpatient procedure, but its mortality rate "is 28 times higher than the mortality rate for abortion," Breyer added.

"These facts indicate that the surgical-center provision imposes 'a requirement that simply is not based on differences' between abortion and other surgical procedures 'that are reasonably related to' preserving women's health, the asserted 'purpos[e] of the act in which it is found,'" the ruling continues.

Justice Clarence Thomas wrote in dissent that the ruling "exemplifies the court's troubling tendency 'to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.'"

Thomas accused the court of taking up a procedurally barred case, but Breyer spent eight pages showing otherwise.

"Today's decision will prompt some to claim victory, just as it will stiffen opponents' will to object," Thomas wrote. "But the entire nation has lost something essential. The majority's embrace of a jurisprudence of rights-specific exceptions and balancing tests is 'a regrettable concession of defeat — an acknowledgement that we have passed the point where "law," properly speaking, has any further application.'"

Thomas also joined a dissent by Justice Samuel Alito, as did Chief Justice John Roberts.

"Even if the court were right to hold that res judicata does not bar this suit and that H. B. 2 imposes an undue burden on abortion access — it is, in fact, wrong on both counts — it is still wrong to conclude that the admitting privileges and surgical center provisions must be enjoined in their entirety," Alito wrote. "H. B. 2 has an extraordinarily broad severability clause that must be considered before enjoining any portion or application of the law. Both challenged provisions should survive in substantial part if the court faithfully applies that clause. Regrettably, it enjoins both in full, heedless of the (controlling) intent of the state legislature." (Parentheses in original.)

Though a federal judge had found Texas' rules unconstitutional, the Fifth Circuit had reversed on appeal — crediting the state's medical expert who said abortions should be performed in ambulatory surgical centers "because surgical abortion involves invasive entry into the uterus, which is sterile."

Contradicting this emphasis about the sterility of a woman's uterus, however, Breyer noted that "abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile."

Texas had argued that the seven or eight remaining clinics in its borders should expand to provide abortions for the 60,000 to 72,000 women seeking such procedures each year.

But Breyer notes that Texas admittedly "presented no such evidence."

The state could point only to one new clinic that now serves 9,000 women annually.

"In addition to being outside the record, that example is not representative," Breyer said. "The clinic to which Texas referred apparently cost $26 million to construct — a fact that even more clearly demonstrates that requiring seven or eight clinics to serve five times their usual number of patients does indeed represent an undue burden on abortion access.

Justice Ruth Bader Ginsburg joined the majority opinion, and she issued a two-page concurrence that slams Texas for its double-speak.

"Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements," Ginsburg wrote. "Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions. When a state severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. So long as this Court adheres to Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that 'do little or nothing for health, but rather strew impediments to abortion,' cannot survive judicial inspection."

Nancy Northup, the president and CEO of the Center for Reproductive Rights, applauded the court's vindication of women's rights.

"The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics," Northup said in a statement.

Presidential hopeful Hillary Clinton spoke out on the ruling as well.

"Our fight is far from over," the presumptive Democratic nominee said in a statement. "In Texas and across the country, a woman's constitutional right to make her own health decisions is under attack. In the first three months of 2016, states introduced more than 400 measures restricting access to abortion. We've seen a concerted, persistent attack on women's health and rights at the federal level. Meanwhile, Donald Trump has said women should be punished for having abortions. He also pledged to defund Planned Parenthood and appoint Supreme Court justices who would overturn Roe v. Wade.

"Today's decision is a reminder of how much is at stake in this election," Clinton added. "We need a president who will defend women's health and rights and appoint Supreme Court justices who recognize Roe v. Wade as settled law. We must continue to protect access to safe and legal abortion — not just on paper, but in reality."

The Obama administration emphasized its stance as well.

"In the days ahead, the Department of Justice will continue fighting against laws like this one," Attorney General Loretta Lynch said in a statement. "And we will continue to defend the constitutional rights of women across America - including the right to reproductive freedom."

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