The U.S. Supreme Court Monday ruled that a Texas law requiring doctors performing abortions to have admitting privileges at a local hospital and requiring clinics to comply with standards of an ambulatory surgical center, interferes with a woman’s right to choose. Many abortion clinics in the state shut down.
Although the law is sold in states that have similar provisions as necessary in case a procedure goes badly, the Supreme Court, by a 5-to-3 vote, said there’s no evidence it performs such a service, suggesting that it is an effort to curtail abortions altogether.
Here are some key parts of today’s opinion.
Justice Stephen Breyer
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.
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.”
We recognize that increased driving distances do not always constitute an “undue burden.” But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.
Justice Samuel Alito in his dissent
Indeed, it seems clear that H. B. 2 was intended to force unsafe facilities to shut down. The law was one of many enacted by States in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient.
Gosnell had not been actively supervised by state or local authorities or by his peers, and the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion clinics to comply with the same regulations as ASCs.
If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.
Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.
Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.
Justice Ruth Bader Ginsberg
Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, “complications from an abortion are both rare and rarely dangerous.” Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements.
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, 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.
Justice Clarence Thomas in his dissent
If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test.
All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the “cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry”) and a “reasoned, principled explanation” for why it is pursuing them—then this Court defers.
Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically debated.
While there can be no doubt that H. B. 2 caused some clinics to cease operation, the absence of proof regarding the reasons for particular closures is a problem because some clinics have or may have closed for at least four reasons other than the two H. B. 2 requirements at issue here.
The dissent’s only argument why these clinic closures, as well as the ones discussed in Part V, infra, may not have imposed an undue burden is this: Although “H. B. 2 caused the closure of some clinics,” other clinics may have closed for other reasons (so we should not “actually count” the burdens resulting from those closures against H. B. 2),
But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures.
The District Court credited that evidence and concluded from it that H. B. 2 in fact led to the clinic closures. The dissent’s speculation that perhaps other evidence, not presented at trial or credited by the District Court, might have shown that some clinics closed for unrelated reasons does not provide sufficient ground to disturb the District Court’s factual finding on that issue.
Related: The remarkably unchanging American split on abortion (Washington Post)