Supreme Court strikes down an abortion texan law: highlights from the decision


The Supreme Court on Monday struck down a Texas law regulating the state’s abortion clinics, concluding the rules were an “undue burden” on a woman’s right to terminate her pregnancy.

The justices, voting 5-3, struck down a Texas law signed by then-Gov. Rick Perry in 2013 that requires abortion clinics to meet the standards of ambulatory surgical centers and mandates that physicians performing the procedure maintain admitting privileges at a hospital within 30 miles. Abortion-rights advocates said the law would cause every clinic outside major cities to shut down, eliminating ready access to the procedure for women across the vast state. Texas disputed that impact and argued that the standards were intended to increase the health and safety of abortion patients.

Justice Stephen Breyer, who wrote the opinion, was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented.

Below are excerpts from the majority opinion, the concurring opinion by Justice Ginsburg and dissenting opinions by Justices Alito and Thomas:

The Majority Opinion

Justice Breyer opens his 40-page opinion by summarizing the holding:

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 evidence shows that the requirements in the law constitute an “undue burden,” writes Justice Breyer:

In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000.”

The majority sees a “virtual absence of any health benefit” stemming from the restrictions:

We recognize that increased driving distances do not always constitute an “undue burden.” But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

Such abortion restrictions, writes Justice Breyer, wouldn’t prevent another scandal like the one surrounding Philadelphia abortion doctor Kermit Gosnell:

[T]he dissent points to the Kermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He “staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal procedures; and inadequate emergency access for when things inevitably went wrong.” Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.

The majority disagrees that the burden could be eased by hiring more physicians:

The dissent takes issue with this general, intuitive point by arguing that many places operate below capacity and that in any event, facilities could simply hire additional providers. We disagree that, according to common sense, medical facilities, well known for their wait times, operate below capacity as a general matter. And the fact that so many facilities were forced to close by the admitting privileges requirement means that hiring more physicians would not be quite as simple as the dissent suggests. Courts are free to base their findings on commonsense inferences drawn from the evidence. And that is what the District Court did here.

• In a brief concurrence, Justice Ginsburg says it “is beyond rational belief that H. B. 2 could genuinely protect the health of women.”

The Dissents

Justice Alito penned a 43-page dissent and was joined by Chief Justice Roberts and Justice  Thomas.

Justice Alito says the Texas law as a reasonable response to the Gosnell scandal:

If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.

The dissenters dispute that the evidence shows the restrictions at issue led to the closure of abortion clinics:

At least nine Texas clinics may have ceased performing abortions (or reduced capacity) for one or more of the reasons having nothing to do with the provisions challenged here….Precise findings are important because the key issue here is not the number or percentage of clinics affected, but the effect of the closures on women seeking abortions….Petitioners—who, as plaintiffs, bore the burden of proof— cannot simply point to temporal correlation and call it causation.

Likewise, Justice Alito writes, the evidence that demand exceeds capacity is thin:

Petitioners offered scant evidence on the capacity of the clinics that are able to comply with the admitting privileges and ASC requirements, or on those clinics’ geographic distribution. Reviewing the evidence in the record, it is far from clear that there has been a material impact on access to abortion.

 The high court should have taken steps to “separate any bad provisions from the good,” rather than striking the provisions wholesale, Justice Alito writes:

By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients must “be treated with respect, consideration, and dignity.” That’s now enjoined. Patients may not be given misleading “advertising regarding the competence and/or capabilities of the organization.” Enjoined. Centers must maintain fire alarm and emergency communications systems, and eliminate “[h]azards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma.”  Enjoined and enjoined.

 Justice Alito concludes that majority’s refusal to parse the law reflects its partiality:

When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.

• Justice Thomas authored a 16-page dissent of his own. Invoking the late Justice Antonin Scalia, he accuses the majority of “bending the rules,” quoting from a Scalia dissent in the 2000 case Stenberg v. Carhart:

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.”

Monday June, 27th 2016

Source: Gershman/Palazzolo, Wall St Journal

To learn more about the abortion law in Texas: