On Monday, the Supreme Court ruled that two provisions of a Texas law that placed restrictions on abortion clinics were unconstitutional. The infamous House Bill 2, which Wendy Davis so famously filibustered, was passed back in 2013 and included provisions that Texas clinics (a) must be built with the same architectural requirements as surgical centers (i.e. eight-foot-wide hallways and three-food-wide doorways, which make it possible to wheel gurneys down the hall side-by-side, despite the fact that gurneys are rarely used in abortion clinics), and (b) must employ doctors with admitting privileges to a surgical center no more than 30 miles from the clinic.
If Texas lawmakers had gotten their way, most abortion clinics in the state would’ve been shut down. But Justice Stephen Breyer wrote in his majority opinion that the two restrictions placed an “undue burden on abortion access, and thus violate the Constitution.”
In the case, Whole Woman’s Health vs. Hellerstedt, Texas’s solicitor general, Scott Keller, argued that the restrictions were put in place to protect women’s health. They were passed after the conviction of Kermit Gosnell, a doctor who ran an illegal abortion clinic in the state and was convicted of murder for performing partial-birth abortions. Keller’s brief reportedly mentioned Gosnell 11 times — in other words, it relied on Gosnell’s violations to prove that these two restrictions were not only constitutional, but necessary.
But Whole Women’s Health, a chain of Texas-based abortion clinics, argued that the two restrictions were designed for the sole purpose of shutting down clinics. Not only have basic abortion surgeries been performed safely at clinics for years, but in many cases no surgery is required at all, which made the whole surgical-center requirement a little ridiculous.
And although it sounds like a good idea for abortion doctors to have admitting privileges at nearby hospitals, in reality the rare patient who needs emergency-room treatment would be admitted and treated by a hospital regardless of her doctor’s credentials. Indeed, SCOTUS found that the previous law, which required abortion clinics to have a “working arrangement” with doctors who have admitting privileges, works just fine.
When pressed, Texas lawyers couldn’t name a single instance in which the state’s new requirements would’ve helped even one woman obtain better treatment. Based on Texas’s lack of evidence, the Court concluded “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”
The 5-3 ruling — which marks the first time in more than 15 years the Court has placed limits on state abortion legislation — is a huge victory not just for abortion-rights activists, but for the more than 1 million women in Texas who are of reproductive age. If HB2 had been upheld, all but six clinics in the state would have closed. It also prevents states with similar laws, such as Wisconsin, Louisiana, and Alabama, from following Texas’s lead and enacting restrictions designed to shut down clinics.
Breyer’s opinion also does a lot to clarify the phrase “undue burden,” which was first used as a standard in an abortion case in the early ‘90s. Until today’s ruling, it was unclear how to determine whether a state’s laws placed an “undue burden” on a woman seeking an abortion. But the ruling suggests that rather than rely on fear-mongering and unsubstantiated claims, a state must prove that new regulations “advance the State’s legitimate interest in protecting women’s health” relative to prior laws.