US: Supreme Court strikes down 2013 Law aimed at closing majority of Texas's abortion clinics Print E-mail
 Tuesday JUNE 28 2016 , page A22

A Major Victory for Abortion Rights

By THE EDITORIAL BOARD

  (Lilli Carré)
In the most significant victory in a generation for a woman’s right to make decisions about her own body, the Supreme Court on Monday struck down Texas’s harsh and dishonest anti-abortion law by a vote of 5 to 3.

The justices’ reasoning in overturning the law applies to hundreds of other attempts in recent years by Republican lawmakers around the country to restrict or destroy constitutionally protected reproductive rights.

While the decision was unquestionably correct, the vote should have been unanimous. The 2013 Texas law ­ which forced abortion clinics and their doctors to meet absurd, pointlessly strict medical standards ­ was the textbook definition of what the court had prohibited in a major 1992 ruling on abortion: “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

In an opinion by Justice Stephen Breyer, the court relied on that earlier decision, Planned Parenthood v. Casey, to invalidate the requirement that abortion clinics meet the strict equipment and staffing standards of ambulatory surgical centers, and that doctors working at those clinics have admitting privileges at local hospitals.

Because “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” Justice Breyer wrote, both violate the Constitution by placing “a substantial obstacle in the path of women seeking a previability abortion.”

The admitting-privileges requirement has no bearing on the level of care that a woman receives, and Texas could not provide any evidence that it does. Likewise, the strict surgical standards are unrelated to the actual risk of complications stemming from a legal abortion, which is among the safest medical procedures. Texas does not, for instance, impose such standards on many riskier procedures, including colonoscopies, tonsillectomies and liposuction.

If there were any lingering doubt that the point of Texas’ law was to make safe and legal abortions nearly impossible to obtain, it was dispelled by the declarations of top state officials. The former governor Rick Perry, in pushing for the law, said it was one step toward an “ideal world” where there was no abortion. Immediately after the State Senate passed its version of the law, known as SB5, David Dewhurst, the lieutenant governor at the time, posted a map on Twitter showing the expected closure of most abortion clinics across the state. “We fought to pass SB5 through the Senate last night, and this is why!” he wrote.

Both men knew what they were talking about: More than half of the state’s roughly 40 abortion clinics, unable to meet the admitting-privileges requirement, closed ­ 11 on the day the law was enacted. Had the justices upheld the entire law, as few as seven clinics would have remained, all in major metropolitan areas. Hundreds of thousands of women living in the vast rural stretches of Texas have already been forced to travel great distances to exercise their constitutional right. This actually increased the health risks of abortion, since women in this position are more likely to choose illegal and unsafe methods to end their pregnancies.

As Justice Ruth Bader Ginsburg wrote in a concurring opinion, “it is beyond rational belief” that the law “could genuinely protect the health of women.” Beyond rational belief, perhaps ­ but not beyond the polemics of Justice Samuel Alito Jr. In a lengthy dissent, Justice Alito, joined by Chief Justice John Roberts Jr. and Justice Clarence Thomas, offered unconvincing explanations for clinic closures. Perhaps, he postulated, older doctors in those clinics had decided to retire ­ on the very same day.

For years, the court has looked the other way as lawmakers around the country have grown increasingly bold in their efforts to weaken or obliterate a woman’s right to reproductive freedom. Versions of the Texas law are on the books in 23 other states, and other laws have tried to block abortion rights even more directly ­ for instance, by banning all abortions six weeks after conception, when many women don’t even know they are pregnant.

Monday’s ruling should spell the end for many if not most of these regressive, unconstitutional laws.

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 Tuesday JUNE 28 2016 , page A23

The Facts Win Out on Abortion

By Linda Greenhouse

 Demonstrators outside the Supreme Court on Monday. (Zach Gibson/The New York Times)

SOMEONE landing from Mars on Monday and coming upon Justice Stephen G. Breyer’s majority Supreme Court opinion in the Texas abortion case would have had no hint of the decades-long battle over women’s right to abortion and the dogged efforts by states to put obstacles in their way.

There is no poetry in the 40-page opinion, which strikes down a Texas law that would have closed most abortion clinics in the state in the name of protecting women’s health. The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

There was no mystery in what the five justices in the majority, crucially including Justice Kennedy, accomplished this time, nor in the decision’s impact. By holding the state’s asserted rationale for its clinic-decimating regulations up to the light and finding it specious and counterproductive, the court has shut down one of abortion opponents’ main recent strategies: enacting “targeted regulation of abortion providers” laws that impose on doctors who perform abortions special restrictions not placed on doctors who do procedures of equal or greater risk.

“Specious” is my word, not the court’s. Justice Breyer was careful not to call out the Texas Legislature for placing a health-related veneer on laws whose true intent is to make access to abortion more difficult. Judges are extremely reluctant to accuse legislatures of acting in bad faith, and Justice Breyer didn’t have to do that. He simply had to show, carefully and methodically, the “virtual absence of any health benefit” from requiring doctors who provide abortions to obtain admitting privileges at local hospitals or requiring abortion clinics to retrofit themselves as mini-hospitals at huge cost.

Why does the absence of a health benefit matter? Because, as suggested in Casey and made explicit here, a court confronting a state-devised obstacle to abortion has to balance the burden the law imposes against the benefit it provides. Not the benefit the state claims for it ­ we’re only trying to protect women’s health, the Texas governor, Greg Abbott, and attorney general, Ken Paxton, avowed lamely on Monday ­ but the benefit the law actually conveys. In the decision, Whole Woman’s Health v. Hellerstedt, evidence-based medicine meets evidence-based law.

The logic of the opinion is so clear as to seem self-evident; indeed, two of the three dissenters, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., didn’t even try to confront it, arguing instead and at length that the clinics’ appeal was flawed for procedural reasons. The Casey decision established the “undue burden” standard for judging abortion laws, and the word “undue” itself implies a comparison: undue as compared to what? The answer: An undue burden is one that outweighs a benefit.

But the almost laughably conservative United States Court of Appeals for the Fifth Circuit didn’t understand it that way in the decision that the Supreme Court overturned Monday. That court rebuked the district court judge, Lee Yeakel of Austin, Tex., an appointee of President George W. Bush, for having the nerve to insist on evidence for the state’s health-related claims. “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” Judge Jennifer Walker Elrod wrote for the court. In an earlier phase of the case, another Fifth Circuit judge, Edith Jones, declared that the court would defer to the Legislature even if the law was based on “rational speculation unsupported by evidence or empirical data.”

Those days are now over. The provisions of the Texas law, Justice Breyer concluded, “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”

Although nearly one- third of American women will have an abortion in their lifetime, a goal of abortion opponents has been to carve out abortion practice from ordinary health care, to ghettoize and delegitimize it. Those days are now over, too. Singling out abortion for regulation that can’t be justified on medical grounds is unacceptable, as Justice Ruth Bader Ginsburg emphasized in a concurring opinion.

When I first read Justice Breyer’s opinion, my sense of relief struggled against a feeling that something nonetheless was missing: not necessarily the aspirational rhetoric of the Casey decision but some explicit acknowledgment of what it means to women’s equality and dignity not to be trapped in an unwanted pregnancy.

Then I realized that while the court in Casey called upon “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” it didn’t really work out. Maybe, after all, this is not a moment for poetry, but for facts. There’s not much in Justice Breyer’s opinion that’s quotable. But there’s not much that’s debatable either, and that’s what matters.
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 Monday JUNE 27, 2016

Supreme Court Strikes Down Texas Abortion Restrictions

By ADAM LIPTAK
On Monday, the Supreme Court struck down parts of a restrictive Texas law that would have severely limited abortion access in the state. Activists outside the Supreme Court reacted to the news.

WASHINGTON ­ The Supreme Court on Monday reaffirmed and strengthened constitutional protections for abortion rights, striking down parts of a restrictive Texas law that could have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.

The 5-to-3 decision was the court’s most sweeping statement on abortion since Planned Parenthood v. Casey in 1992, which reaffirmed the constitutional right to abortion established in 1973 in Roe v. Wade. It found that Texas’ restrictions ­ requiring doctors to have admitting privileges at nearby hospitals and clinics to meet the standards of ambulatory surgical centers ­ violated Casey’s prohibition on placing an “undue burden” on the ability to obtain an abortion.

If Casey limited the right established in Roe, allowing states to regulate abortion in ways Roe had barred, Monday’s decision effectively expanded that right. It means that similar requirements in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion. It is also sure to energize anti-abortion forces and make abortion a central issue in the presidential campaign.


The decision concerned two parts of a law that imposed strict requirements on abortion providers in Texas signed into law in July 2013 by Rick Perry, the governor at the time.

One required all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other required doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Stephen G. Breyer wrote for the majority, “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.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

In the Casey decision, he joined Justices Sandra Day O’Connor and David H. Souter in a joint opinion that reaffirmed the core of Roe v. Wade. But Justice Kennedy’s reputation as an abortion rights champion had otherwise been undeserved, said David S. Cohen, a law professor at Drexel University, as Casey was the only case in which he had found an abortion restriction unconstitutional in his 28 years on the Supreme Court.

Professor Cohen said Justice Kennedy’s vote in Monday’s case was a puzzle. He may have been swayed by the burdens placed on women having to drive hundreds of miles to obtain abortions, Professor Cohen said, or by the lack of medical evidence justifying the restrictions ­ or both.

Many states have enacted restrictions in recent years that test the limits of the constitutional right to abortion, and the ruling in the new case, Whole Woman’s Health v. Hellerstedt, No. 15-274, enunciated principles that will apply to all of the ones said to be justified by a concern for women’s health.

In a message posted on Twitter, President Obama said he was “pleased to see the Supreme Court reaffirm” that “every woman has a constitutional right to make her own reproductive choices.”

Ken Paxton, Texas’ attorney general, said, “The court is becoming a default medical board for the nation, with no deference being given to state law.”

The Texas law was passed in 2013 by the Republican-dominated Texas Legislature and turned a Democratic state senator, Wendy Davis, who conducted an 11-hour filibuster against the law, into a national political star.

Last June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, saying it had to accept lawmakers’ assertions about the health benefits of abortion restrictions. The appeals court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

Justice Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”