In a historic victory for reproductive rights, the U.S. Supreme Court has struck down two key parts of Texas’ draconian omnibus law, House Bill 2.
In a 5-3 ruling – with swing vote Justice Anthony Kennedy siding with liberal judges – the high court ruled HB 2 unconstitutional and an undue burden on women seeking abortion. The ruling ends a long struggle for Texas women and health providers.“Both the admitting privileges and the surgical center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution,” wrote Justice Stephen Breyer for the majority opinion.
The case, Whole Woman’s Health v. Hellerstedt, is seen as the the most pivotal abortion rights case in more than two decades. It forced justices to decide how far states can go when restricting abortion and provide further clarity on what constitutes an undue burden as defined in the seminal 1992 abortion-rights case, Planned Parenthood v. Casey. While the early Nineties case allowed states greater latitude when regulating abortion, it also barred them from passing “unnecessary” laws that have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."
The "undue burden" test allows the court to balance the state's interest in protecting fetal life with the ability of women to access their constitutional right without interference. While a federal judge struck down HB 2 as unconstitutional, the conservative 5th Circuit Court of Appeals upheld it, failing to consider the closure of more than three-fourths of Texas abortion clinics a substantial obstacle to abortion access. The 5th Circuit, downplaying HB 2’s barriers for poor and minority women, largely swallowed whole the state’s argument that the law is meant to protect the health and safety of women and refrained from questioning openly anti-choice lawmakers’ intent for passing the law, despite the stunning lack of medical evidence backing up the legislation’s necessity.[inset-1]
Filed in 2014 by a group of Texas abortion providers including Whole Woman’s Health, Austin Women’s Health Center, Killeen Women’s Health Center, and Reproductive Services, the case challenged a rule that forces physicians to secure admitting privileges at a hospital within 30 miles of the abortion clinic, and took aim at regulations that transform clinics into ambulatory surgical centers (ASCs). The ASC rule would force providers to make costly changes, including installing janitor closets, new HVAC systems, and widening hallways – changes deemed not only “entirely unnecessary” but an impediment to basic health care by major mainstream medical organizations including the American Medical Association and the American College of Obstetricians & Gynecologists. Both provisions have been struck down today.
The construction and building expenses were estimated to cost up to $3 million, a price tag that puts largely independent, modest clinics in the state swiftly out of business. The costly ASC rule had yet to fully take effect, but if upheld was expected to shutter all but as few as 10 clinics located in major metro areas, creating an unprecedented reproductive health care crisis. In Austin, only the Planned Parenthood ASC on Ben White Blvd. would have remained.
In its ruling today, the Supreme Court slammed the logic and reasoning of the state of Texas as well as the 5th Circuit Court of Appeals. The conservative appeals court erred by not taking into account the burden the law imposes on abortion access together with the medical benefits the law ostensibly provides, as Casey requires. It also failed at checking evidence from the Texas Legislature to justify the law’s necessity, giving uncritical deference to the Lege: “Explicit legislative findings must be considered, but there were no such findings in HB 2.” SCOTUS makes clear they, like the federal district court that struck down HB 2, have “placed considerable weight upon evidence and argument presented in judicial proceedings,” including research on increased travel times, distance, number of women and providers affected, and inability to handle increased capacity when clinics close.
And the paltry (and unpersuasive) evidence the state did bring to the table wasn’t sufficient for proving their argument – that the law would protect the safety and health of women. “The State’s record evidence, in contrast, does not show how the new law advanced the State’s legitimate interest in protecting women’s health,” wrote Breyer.
In fact, the state came up short in providing basic answers to back their onerous law, and SCOTUS sharply criticized: “[W]hen 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.”
SCOTUS picked apart the state and 5th Circuit’s often illogical or just plain weak arguments for the two provisions. They pointed to the double standard of the ASC rule, noting the low mortality rate of abortion in contrast to other medical procedures like colonoscopies, which are not required to be performed at an ASC. Providing few, if any, health benefits for an already highly regulated and largely safe procedure, the ASC rule is “not necessary” and poses an undue burden on women, they determined. While the state minimized the logistical catastrophe that would ensue for remaining clinics accepting displaced patients if the ASC rule were to be enforced, SCOTUS drew attention to it: “Common sense also suggests that a physical facility that satisfies a certain physical demand will generally be unable to meet five times that demand without expanding physically or otherwise incurring significant costs. And Texas presented no evidence at trial suggesting that expansion was possible.”
SCOTUS also shut down the state’s argument the law could somehow prevent a Kermit Gosnell-type situation by forcing unsafe facilities to close: “The record contains nothing to suggest that HB 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.”
The admitting privileges rule is equally burdensome, unnecessary, and the reason Texas has been left with so few abortion clinics, SCOTUS concluded. “The admitting-privileges requirement does not serve any relevant credentialing function…In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics.”
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” wrote Breyer.
In her concurring opinion, pro-choice advocate Justice Ruth Bader Ginsburg, admonished all laws similar to HB 2, sending a message to other states that are attempting to pass abortion-restrictive laws. “[I]t is beyond rational belief that HB 2 could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions,'” wrote Ginsburg. "Targeted Regulation of Abortion Providers laws like HB 2 that 'do little or nothing for health, but rather strew impediments to abortion' ... cannot survive judicial inspection.”
The other parts of HB 2 have led to the closure of more than half of the state’s abortion clinics, leaving 19 out of 41 clinics in operation. Two out of four of Austin’s abortion clinics ceased services after HB 2, including Whole Woman’s Health flagship clinic. Providers have stressed that even with a favorable SCOTUS ruling, clinics will not be able to open back up overnight.
The other two parts of HB 2 still stand. One rule bans abortion after 20 weeks of pregnancy and the other had forced women to follow outdated and potentially unsafe FDA protocol when taking abortion pills – however, the FDA recently updated its guidelines rendering that rule considerably ineffective.
The SCOTUS decision is the culmination of nearly three and half years of fighting by pro-choice advocates, health providers, and lawyers. Its predecessor, Senate Bill 5, attracted the attention of the nation when former senator and gubernatorial candidate Wendy Davis held a 13-hour filibuster to beat the bill and spurred massive citizen-led protests at the Capitol. Today the “orange army” celebrates years of tireless and determined activism against one of the harshest anti-choice laws in the country.
“Today, the Supreme Court affirmed what we at Whole Woman’s Health have known all along – that every woman, no matter where she lives, deserves access to compassionate, respectful, and comprehensive care from a clinic she trusts," said Amy Hagstrom-Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the case, in a statement. "Today justice was served.”
This story has been updated throughout. Stay tuned for continued coverage.
Pro-choice advocates plan to hold a rally today at 5:30pm at Scholz Garten. Event info can be found here.
For more on the law’s impact, read the Chronicle’s Jan. 29 cover story, “Roe’s End?”
For a recap of HB 2 oral arguments at the Supreme Court, read here.
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