Opinion

Why the Supreme Court couldn't tolerate Texas' abortion laws

Even to Anthony Kennedy, it was an obvious sham

Texas finally pushed Anthony Kennedy too far. For more than two decades, states have pushed the envelope on abortion regulation, passing restrictions that in some cases make it nearly impossible for abortion clinics to operate. On Monday, the Supreme Court finally cracked down on these attempts to surreptitiously ban abortion. In the Court's most important abortion decision since 1992, the Court struck down the worst parts of a Texas abortion statute that would have required most of the state's abortion clinics to close. It was a major victory for the pro-choice movement.

In the 1992 landmark Planned Parenthood v. Casey, the Supreme Court upheld Roe v. Wade. But this upholding of Roe came at a major cost. The Court's opinion permitted restrictions of abortion that did not constitute an "undue burden." In theory, this standard could provide robust protection for reproductive rights. In practice, the Court has allowed states to pass virtually any regulation of abortion that isn't an outright ban on pre-viability abortions. That is, until Monday. Texas' abortion statute was passed in such egregious bad faith that Kennedy — one of the authors of Casey and the Court's swing vote on abortion rights — couldn't look the other way.

Texas' infamous HB2 attempted to make abortions nearly impossible to obtain. The two key provisions were requirements that doctors performing abortions have admitting privileges at a hospital within 30 miles and that abortion clinics meet the specifications of full-service surgical centers. While these regulations are presented as health regulations, they aren't. They're not intended to make abortion — a very safe medical procedure in states that don't have these restrictions — safer. They're intended to shut abortion clinics down, period.

In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by Kennedy and the Court's other Democratic nominees, the Court forcefully acknowledged this reality. "The surgical-center requirement also 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," concluded the majority.

Breyer's argument that the Texas statute constituted an "undue burden" is straightforward and unanswerable. First, the regulations were not meaningfully related to protecting the health of women. All of the evidence suggests that abortion was already a very safe procedure in Texas, and the state also provided no evidence that these regulations would meaningfully improve safety. Texas, as the majority observed, could literally not name a single case in which the admitting privileges requirement would have allowed a woman to attain better post-surgical care. The health justifications offered by Texas, in other words, were obvious shams, and the Court refused to pretend otherwise.

The other half of the equation — whether the statute made it substantially more difficult for women to obtain abortions — was equally easier to answer. Eight of the state's abortion clinics closed in the months between the law's passage and its effective date of application, and 11 more closed the day the law took effect. Making women drive very long distances to obtain abortions is obviously a very substantial burden, and it was one that Texan women outside of a few urban centers would face.

Indeed, if evaluated as a health regulation, the Texas law is massively counterproductive. As Justice Ruth Bader Ginsburg observed in her brief concurrence, "When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners… at great risk to their health and safety." If Texas wanted to protect the health of women in the state, it would want to ensure that women have easy access to licensed abortion clinics, rather than pushing them to the unregulated black market.

If a law that makes it much more difficult for women to obtain an abortion and does not have any serious health justification does not constitute an "undue burden," then the phrase has no meaning. In striking down the offending provisions of HB2, the Court acknowledged this basic reality.

Another striking indication of how specious Texas' justifications for its law were is how little of the 60 pages of the dissenting opinions, written by Justices Clarence Thomas and Samuel Alito, actually defend the law as not constituting an "undue burden." Rather, both Alito and Thomas focused on technical, jurisdictional arguments that would have prevented the Court from hearing the case.

For anyone familiar with Alito's body of work, this shouldn't be a surprise. Going back to his days as a Circuit Court judge, Alito has specialized in developing various procedural obstacles that make it practically impossible for abortion statutes to be struck down. In this case, for example, Alito argues that abortion clinics cannot invoke the right to choose to have an abortion, because this right belongs to the women obtaining an abortion. But this is obviously absurd. Closing clinics has a direct and major impact on the ability of women to obtain safe abortions, and to argue that clinics lack the standing to challenge them is silly.

To the extent that Alito and Thomas make any substantive argument at all, it is to define the "undue burden" standard in a way that would give essentially unlimited deference to legislatures. Admittedly, in its prior decisions the Court had gone pretty far down that road. But it was certainly right to finally start taking the "undue burden" standard seriously today.

This is a very important decision, but it is just one battle. The Court's opinion narrowly focused on these two particular provisions, but states have many other ways of trying to restrict access the Court will still have to deal with. Having a Supreme Court majority strongly committed to reproductive rights will be crucial. With one Supreme Court vacancy already looming, the 2016 elections will be very important for American women, and not just because we might have a woman capture the White House for the first time.

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