Dear Commons Community.
The Supreme Court today struck as unconstitutional part of a restrictive Texas statute that threatened to close down half of the state’s abortion clinics, deny millions of women the right to a safe abortion. The ruling in Whole Woman’s Health v. Hellerstedt is being hailed a game changer in women’s rights to an abortion and represents the most significant victory at the high court since the turn of the century. As reported by The Huffington Post:
“The [Roe v. Wade] 1973 decision, refined by a conservative compromise in a 1992 case, established that the Constitution protects a woman’s right to end her pregnancy, but later rulings and conservative lobbying have given states leeway to craft abortion laws and regulations targeting not so much the right but those who facilitate it.
Writing for a 5-3 majority, Justice Stephen Breyer said the two Texas laws at issue in the case are unconstitutional.
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” he wrote. “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.”
When the Supreme Court heard the Whole Woman’s Health case in March, Texas insisted that “abortion is legal and accessible” in the state, but was badgered by the liberal wing of the court, led by Justice Ruth Bader Ginsburg, to explain how its law, the controversial HB 2, protects women’s health — an interest the court has in the past recognized as a valid justification for abortion-related legislation.
Avowing a concern for women’s health, Texas lawmakers passed the sweeping HB 2, which, among other requirements, mandated that abortion clinics undergo costly structural upgrades so as to resemble mini hospitals, and that abortion doctors obtain so-called admitting privileges at nearby hospitals — all in the name of reducing health risks and increasing safety.
On the ground, these requirements have turned out to be onerously prohibitive for smaller abortion clinics in Texas, forcing many to close since parts of HB 2 went into effect. Were it not for legal action challenging the two provisions and court intervention along the way, only women living in large metropolitan areas of Texas would have access to safe, legal abortions.
But everyone else — particularly women residing in remote areas, hundreds of miles from the nearest abortion clinic — would have been left in the lurch or forced to travel to neighboring states, such as New Mexico, where abortion access is more readily available.
In deciding the Whole Woman’s Health case, the Supreme Court zeroed in on whether the two contested laws amounted to an “undue burden“ on a woman’s constitutional choice to obtain an abortion — the legal test governing abortion restrictions but one that has failed to dissuade state legislatures, particularly in the South, from enacting end-run measures around it.
Breyer’s majority opinion — for which he was joined by Ginsburg and Justices Anthony Kennedy, Sonia Sotomayor and Elena Kagan — reaffirmed this constitutional standard, including the principle that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” to an abortion.
As to the admitting privileges provision, Breyer said there was “nothing” in the record of the case to show that the requirement advanced the interest of protecting women’s health, and chided Texas for admitting during oral arguments that it couldn’t find “a single instance” of it even helping “one woman obtain better treatment.”
Thank you, Justice Breyer and your colleagues on the Court!
Tony
