The Supreme Court today issued its biggest ruling on abortion since upholding the federal ban on partial-birth abortions in the Gonzalez decision. Today, the Supreme Court reversed part of a pro-life Texas law that protects women’s health and has also saved the lives of thousands of unborn children and closed abortion clinics that can’t ensure adequate protection for women.
The high court ruled 5-3 against the Texas pro-life law with Justice Stephen Breyer writing the decision. Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer. Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented.
Breyer’s majority opinion for the court held that the regulations are medically unnecessary and unconstitutionally limit a woman’s right to an abortion.
The 5-3 decision in Whole Woman’s Health v. Hellerstedt shows the paramount importance of judge’s in this year’s presidential election. In approving the appeal from abortion companies, the Supreme Court did not allow Texas’ pro-life law to stand.
At issue in the ruling were two provisions–that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs) and that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies.
Texas’ law is arguably responsible for saving the lives of tens of thousands of unborn babies by closing abortion clinics that are unable to protect women’s health. The laws protects women’s health and welfare by requiring abortion clinics to meet the kinds of medical and safety standards that legitimate medical centers meet.
Breyer wrote that “the surgical-center requirement, like the admitting privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an ‘undue burden’ on their constitutional right to do so.”
Justice Clarence Thomas, who authored the dissenting opinion, wrote, “Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision 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.’”
He continued, “… today’s decision creates an abortion exception to ordinary rules of res judicata, ignores compelling evidence that Texas’ law imposes no unconstitutional burden, and disregards basic principles of the severability doctrine. I write separately to emphasize how today’s decision perpetuates the Court’s habit of applying different rules to different constitutional rights— especially the putative right to abortion.”
John Seago, the legislative director for Texas Right to Life, said the Supreme Court ruling will have a terrible effect on similar pro-life laws in other states that seek to protect women and unborn children.
“This dangerous SCOTUS ruling allows the abortion industry to challenge any safety laws by threatening to close rather than follow law,” Seago said.
Steve Aden, an attorney with Alliance Defending Freedom, said the ruling puts women’s health at risk. In his comments to LifeNews.com, he said:
“Abortionists shouldn’t be given a free pass to elude medical requirements that everyone else is required to follow. We are disappointed that the Supreme Court has ruled against a law so clearly designed to protect the health and safety of women in the wake of the Kermit Gosnell scandal. The law’s requirements were commonsense protections that ensured the maximum amount of protection for women, who deserve to have their well-being treated by government as a higher priority than the bottom line of abortionists. Any abortion facilities that don’t meet basic health and safety standards are not facilities that anyone should want to remain open.”
Abortion advocates challenged the law and those facility regulations and hospital admitting requirements, arguing that these clinics should not be held to the same health standards as other outpatient ambulatory facilities. The abortion businesses suing to stop the pro-life law argued that the effect of the law will be to close many abortion clinics, thus creating an “undue burden” on the right of women to have an abortion.
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But Attorney General Paxton reminded the justices that, “Petitioners ignore the fact that under the Fifth Circuit’s decision, which granted as-applied relief in McAllen, every metropolitan area with an abortion facility operating today in Texas will still have an operating abortion facility if the ruling takes effect.”
Paxton wrote, “States are given wide discretion to pass medical regulations.” Paxton explained that the admitting privileges requirement had already been upheld by courts in a separate lawsuit which “correctly conclude[d] that the challenged provisions of HB2 do not facially impose an undue burden.”
Petitioners ask this Court to depart from a quarter-century of this Court’s abortion jurisprudence by judging for itself the medical effectiveness of HB2’s requirements and balancing it against the burdens purportedly caused by HB2. In short, petitioners would have this Court serve as “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States”—a role this Court has specifically declined to assume.
“[The abortion providers] wish to proceed as if their first lawsuit against HB 2 never happened,” the state attorneys continued. “But they litigated that case to a final judgment, and arguments and evidence they chose not to present there are barred.”
Texas Solicitor General Scott Keller argued the case before the court earlier this year and he was immediately met with skepticism from the pro-abortion members of the high court.
“According to you, the slightest health improvement is enough to burden the lives of a million women,” Justice Sonia Sotomayor told him.
Justice Anthony Kennedy is the swing vote on almost any abortion case and he appeared sympathetic to the argument that abortion clinics should be expected to comply with sensible medical standards if given enough time, according to the Washington Examiner:
“Regulations sometimes take years to adopt,” Kennedy said. At another point, he suggested the lower district court could delay a final decision for a few more years, until it becomes clear whether clinics remain closed, as opponents of the law predict, or whether they manage to reopen.
Kennedy has supported some abortion limits in the past, including the federal ban on partial-birth abortion. But how far he’s willing to let states go in tamping down on abortion is not clear.
Roger Severino, director of the Heritage Foundation’s DeVos Center for Religion and Civil Society, watched the oral arguments and said he thought they went as expected. He is hopeful that Justice Kennedy will side with Texas in upholding the law.
“We had the liberal/conservative breakdown in the Court that you would expect among the justices, but Justice Kennedy, in the few questions he asked, showed some hesitation about courts second-guessing the state’s ability to regulate abortion clinics,” Severino said. “Even Justice Breyer acknowledged the state’s intent in regulating abortion clinics was a legitimate desire to help further women’s health and not for some nefarious purpose.”
“Justice Alito repeatedly challenged the plaintiffs to point to the evidence that clinics closed because of these regulations as opposed to some other reason, and asked for any evidence that the abortion industry cannot adapt to the new standards,” he added.
Severino emphasized “this case is about the ability of Texas to increase the health and safety standards at abortion clinics. The abortion industry should not get a special exemption and Texas is well within its rights to act.”
The pro-life group Texas Right to Life outlined what the court will consider when it decides the case:
Today, the Supreme Court will be considering two explicit questions in the Whole Woman’s Health v. Hellerstadt case over the Texas law:
(1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and
(2) whether the United States Court of Appeals, Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.
Both of these questions deal with the “undue burden” standard from Planned Parenthood v. Casey, which has been used to challenge every type of Pro-Life legislation across the country since 1992. Whether the abortion industry is challenging informed consent laws (like Texas’ Sonogram Bill in 2011), prohibitions on late abortions (as in Arizona in 2014), or higher medical standards (as in the current challenge to House Bill 2), the plaintiffs use the vague and undefined “undue burden” standard in all cases.
The Supreme Court has not directly addressed the issue of abortion since 2007, when the Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart.