In an important decision today, the US Supreme Court by a 5-3 vote in the case Whole Woman’s Health v. Hellerstedt struck down the 2013 law in Texas that had placed onerous restrictions on clinics that provide abortions and thus threatened to shut down nearly all of them in the state. That law, if upheld, would have set the stage for similar laws in other states, effectively largely nullifying the right to abortion except for rich people who could afford to travel to the very few clinics in the US (or abroad) to get safe, legal abortions.
A US district court judge had struck down the law but the Fifth Circuit Court of Appeals had reversed that ruling and dismissed the challenge to the law and the case ended up in the Supreme Court. You can read the majority opinion by justice Breyer and the dissents by justices Thomas and Alito here. As Breyer wrote (citations omitted):
We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as interpreted in Casey. The first provision, which we shall call the “admitting-privileges requirement,” says that
“[a] physician performing or inducing an abortion… must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that… is located not further than 30 miles from the location at which the abortion is performed or induced.”
This provision amended Texas law that had previously required an abortion facility to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.”
The second provision, which we shall call the “surgical-center requirement,” says that
“the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.”
We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. 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.
The Texas law had been part of an ongoing strategy by abortion opponents to use the guise of ‘protecting women’s health’ to severely restrict the ability of women to get abortions by imposing many expensive and hard-to-meet requirements on outpatient clinics that performed abortions as part of their services. These restrictions on abortions went well beyond any medically reasonable requirements and, tellingly, were not required for non-abortion procedures that had similar or even greater risks.
As Ariana Eunjung Cha writes, the court decided in favor of science over unsubstantiated fears.
As the Texas case made its way through the federal courts over the years, numerous misunderstandings and pure fiction about the health risks of abortion entered the debate. Among them are claims that the procedure is fraught with complications, causes cancer, leads to reduced fertility and results in depression, or even suicide.
Among the most critical questions the Supreme Court had to address is whether courts need to consider scientific evidence supporting the laws. A lower court said they do not. But there was a lot for the justices to look at in the medical literature.
The most important thing to know is that a number of recent analyses have dispelled the notion that abortion — as it is practiced now, legally in the United States (abortion in the past and in other countries is a different story) — is unsafe. One important study published in the journal Obstetrics & Gynecology estimated that the risk of a woman dying after childbirth was 10 times greater than after an abortion. The study estimated that between 1998 and 2005, one woman died in childbirth for every 11,000 babies born. That compares with 1 in 167,000 women who died of abortion complications. Doctors who perform abortions say the most common complications are not bladder issues or problems with reproductive organs, as some antiabortion advocates like to emphasize — but mild infection that can be easily treated.
Abortion rights supporters and close observers of the court had their hopes of a favorable outcome increase since the release of opinions in other cases last Thursday. This is because they had been able to count on four justices (Ginsburg, Breyer, Kagan, and Sotomayor) as likely to strike down the law. Since three justices (Roberts, Alito, and Thomas) were likely to uphold the Texas law, it all came down to, as it often seems to these days, how justice Kennedy would vote. If he sided with the law’s supporters, then in the absence of justice Scalia, that would result in a 4-4 tie and in such cases, the court always issues a simple one-sentence statement letting the judgment of the Appeals Court stand. In this case, a tie would have been devastating for abortion rights supporters.
But last Thursday, the court issued three such 4-4 statements in other cases and the fact that it did not include this case amongst the rest suggested that there was no tie, and the most likely reason was that Kennedy had voted to strike down the law. And so it was.
Kennedy has now gone against the religio-conservative body politic in four major cases: upholding the right of people to engage in private homosexual conduct, striking down bans on same-sex marriage, upholding the use of race as a factor in college admissions, and now striking down onerous restrictions on abortion rights.
How long before they start calling for his impeachment?