WASHINGTON — The U.S. Supreme Court on Monday overturned two parts of a 2013 Texas law that strengthened safety standards at abortion facilities, in a 5-3 ruling in Whole Woman’s Health v. Hellerstedt that underscored the majority’s firm adherence to Roe v. Wade.
State abortion businesses had challenged the Texas law, arguing that its real purpose was to impose unnecessary and burdensome standards that would force many of them to close. The law required abortion centers to abide by the same standards that apply to ambulatory surgical facilities and said abortionists must have privileges at hospitals within 30 miles of the businesses where they worked.
Writing for the majority, Justice Stephen Breyer stated that “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”
This spring, during oral arguments in Whole Woman’s Health v. Hellerstedt on March 2, much of the discussion centered on whether the benefits of the law outweighed the burdens placed on women’s access to abortion.
“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,” Breyer stated in his majority opinion Monday.
Justice Anthony Kennedy, the high court’s perennial swing vote, along with Justices Ruth Ginsburg, Elena Kagan and Sonia Sotomayor, voted with the majority.
“So long as this court adheres to Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, targeted-regulation-of-abortion-providers laws like H.B. 2 that ‘do little or nothing for health, but, rather, strew impediments to abortion’ cannot survive judicial inspection,” stated Ginsburg in her two-page concurrence.
Justice Clarence Thomas issued a strong dissent, while he and Chief Justice John Roberts also signed Justice Samuel Alito's more modest rebuke to the majority, suggesting that the court should broaden its review of the relevant evidence before endorsing the claims of the plaintiffs.
“The Constitution does not prescribe tiers of scrutiny,” stated Justice Thomas, who challenged the argument that legal precedent required a higher level of judicial scrutiny for laws restricting abortion.
“The three basic tiers — ‘rational basis,’ intermediate and strict scrutiny — are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.”
In a reference to the court’s recent decision in Fisher v. University of Texas to permit the university to consider an applicant’s race in its admissions process, Thomas contended that the court employed a shifting standard for evaluating state policies and regulations.
“Unless the court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear,” he warned.
As expected, abortion-rights advocates and supporters, including President Barack Obama and Democratic presidential hopeful Hillary Clinton, endorsed the court’s decision.
“SCOTUS’ decision is a victory for women in Texas and across America. Safe abortion should be a right — not just on paper, but in reality,” tweeted Clinton shortly after the news.
Donald Trump, the GOP’s presumptive presidential candidate, did not release a statement. But a slew of legal scholars attacked the decision, echoing Thomas’ objections.
“These were relatively modest regulations, and they apply to many other hospital and medical facilities. But if you want to have an abortion, no rules apply,” John Eastman, director of the Center for Constitutional Jurisprudence at Chapman University’s School of Law, told the Register.
Eastman noted that a key element of the Texas law — restricting abortion to the first 20 weeks of pregnancy — was still in force and had not been challenged. That said, he expressed deep disappointment with Kennedy’s decision to rule against the Texas law, though he sided with pro-life justices in a 2007 ruling on partial-birth abortion.
Teresa Collett, a professor at the University of St. Thomas Law School, pointed to a shift in the court’s jurisprudence with regard to abortion rights. In Gonzalez v. Carhart, the 2007 decision that upheld the Partial-Birth Abortion Ban Act of 2003, “the court softened its pro-abortion stance and said that if a state has a reasonable basis for a law [restricting abortion], we will assume that it is constitutional, and the abortion industry will have to show it poses an obstacle,” explained Collett.
“In this case, the five justices moved away from that and said: We want the state to show how the law benefits women.”
Looking ahead to the November presidential election, Carrie Severino, chief counsel and policy director of the Judicial Crisis Network and a key player in confirmation battles for Supreme Court justices, emphasized the vital importance of presidential candidates’ views on the U.S. Constitution.
In an interview with the Register, Severino warned that if a liberal jurist replaces Antonin Scalia, who died earlier this year, his or her vote will solidify the views of the majority and secure the status quo on legal abortion “for decades to come.”
Other States at Risk
The outcome of the most consequential abortion case before the court in 25 years dealt a serious blow to pro-life legislators and activists, who now fear that similar statutes enacted in other states could be at risk.
At present, Michigan, Missouri, Pennsylvania, Virginia, Tennessee, North Dakota, Wisconsin, Kansas, Oklahoma, Louisiana, Mississippi and Alabama have enacted similar restrictions on abortion businesses, though the laws may be more limited in scope.
Now that the court has ruled that such restrictions pose an “undue burden” to a woman’s access to abortion, Rep. Chris Smith, R-N.J., told the Register, “It will make it harder for laws or policies that protect mothers or babies to survive a constitutional challenge.
“Justice Thomas said this decision will cause a great deal of uncertainty on the part of lower courts for years to come.”
The ruling was a bitter disappointment to Texas lawmakers, who hoped that Kennedy would rule in favor of the law, and so produce a 4-4 decision that would leave in place a Fifth Circuit ruling upholding the restrictions.
“The decision erodes states’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” Texas Gov. Greg Abbott said in a statement.
“Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”
The Gosnell Case
The law marked a strong effort by many states to tighten up regulations governing abortion providers, in the wake of the murder convictions of Kermit Gosnell, a notorious Philadelphia abortionist.
In his opinion, Alito defended the intent of Texas lawmakers and said the plaintiffs had failed to prove that the law was to blame for the closure of state abortion facilities.
“The law was one of many enacted by states in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first-degree murder of three infants who were born alive and for the manslaughter of a patient,” stated Alito.
In his majority opinion, Breyer dismissed any urgent need for the new restrictions and concluded that they would have no power over abortion providers like Kermit Gosnell.
“Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior,” stated Breyer. “Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”
Breyer’s statement shocked pro-life leaders.
“By their logic, all gun regulations are nonsense because the court puts complete trust in self-regulation, as evidenced by Justice Breyer's disparaging statement of the need for high standards of care in abortion clinics,“ said Clarke Forsythe, president and senior counsel for Americans United for Life, in a statement.
“In 2013, Kermit Gosnell was convicted of 237 crimes, including the involuntary manslaughter of a patient who died from complications of anesthesia given by an unlicensed nurse,” Deirdre McQuade, the U.S. bishops’ spokeswoman on pro-life issues, told the Register.
McQuade noted that a Pennsylvania grand jury convened to examine Gosnell’s grisly legacy concluded that ambulatory surgical requirements — “the same sort of requirements struck down by the court in Whole Woman’s Health v. Hellerstedt” — would have made a great difference.
Keep Fighting for Life
But, even as McQuade expressed frustration with the ruling, she said it would be a mistake to give up the fight both to overturn Roe and to promote a culture of life that makes abortion “illegal and unthinkable.”
While it is too soon to say if other state laws will be overturned by the ruling in the Texas case, she emphasized that the U.S. bishops’ pastoral plan for pro-life activities encourages the faithful to work on the issue “at all levels: policy and law, education and prayer, caring for those who are at risk for choosing abortion and reaching out with healing to those who have chosen it or advocated for it.”
Abby Johnson, a former staffer at a Texas abortion business who has emerged as a major pro-life voice, expressed sadness at the court’s ruling, but suggested that the legislative and legal battles over the Texas regulations have already made a difference, by shifting local attitudes on abortion.
Johnson has been involved in extensive outreach to women in the abortion industry, giving her a unique perspective.
“One clinic worker left a Texas [abortion] clinic, then called us and said, ‘I can’t work here in a place where they are fighting a bill that would make this safer for women,’” she told the Register.
And over the past three years, 244 other staffers have left the abortion industry, according to Johnson’s estimates.
“Gosnell is not an isolated case,” she said, noting news reports about facilities under scrutiny for substandard conditions, often as a result of weak regulatory oversight.
Johnson said, “Now more than ever, it is very important for us to not lose hope and continue to move forward.”
Joan Frawley Desmond is the Register’s senior editor.
Link to the SCOTUS opinion was updated Aug. 29, 2018.