Washington
The justices, by a 5-3 vote, reaffirmed their view that state lawmakers may not put an “undue burden” on women who seek an abortion and overturned a Texas law that would have closed three-fourths of the abortion clinics in that state.
The court’s opinion by Justice Stephen G. Breyer concluded that the strict Texas regulations did little to protect the health of women while imposing significant obstacles for those who seek an abortion.
The ruling is likely to block or void similar laws in about two dozen other states.
It was the second time in a week that a longstanding conservative social campaign ended in defeat at the high court. Last week, the justices rejected a plea to strike down affirmative action at colleges and universities. In both cases, Justice Anthony M. Kennedy joined with his liberal colleagues to form the majority.
Until Monday, it was unclear whether Kennedy, a moderate conservative, would tilt in favor of state regulation or the right to abortion. In 2007, Kennedy led conservatives in upholding a ban on “partial-birth” abortions and worried liberals by suggesting in his opinion that many women come to “regret” their decision.
Kennedy also cast the crucial fifth vote in Planned Parenthood vs. Casey in 1992, when the justices upheld the right to abortion established in Roe v. Wade, but gave states more leeway to regulate the procedure as long as they did not impose an “undue burden” on women’s rights.
Since that decision did not clearly define what constitutes an “undue burden,” conservatives have been trying ever since to clarify how far states may go, in Kennedy’s mind, without crossing the line. Anti-abortion lawmakers across the South and the Midwest adopted increasingly strict regulations in recent years that have forced many abortion facilities to close.
By siding with liberals Monday, Kennedy, the last sitting justice who signed the Casey decision, put judges on notice that he thinks the bar for “undue burden” is high.
The decision sends a clear warning to Republican-led states hoping to restrict abortion for political or religious reasons that the high court will not blindly accept a state legislature’s findings that restrictions are medically necessary without clear evidence.
Breyer said the state’s two major regulations cannot be justified on medical grounds. The 2013 Texas law required doctors performing abortions to have admitting privileges at nearby hospitals and clinics to meet the minimum standards of surgical centers.
The law forced about half of the state’s abortion clinics to close, and if fully implemented, would have reduced the number from 40 before 2013 to nine, located only in major metro areas like Dallas, Fort Worth, Austin, Houston and San Antonio, abortion-rights groups said.
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” Breyer wrote in Whole Woman’s Health v. Hellderstedt. “Each places substantial obstacles in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”
Breyer noted that Texas appeared to be singling out abortions, rather than other procedures with a higher risk rate.
“Nationwide, childbirth is 14 times more likely than abortion to result in death,” Breyer said, “but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than abortion.”
Texas would have required all abortions to take place in fully staffed, outpatient surgical centers, including women only seeking medication to end an early pregnancy. Since only nine such facilities are in operation in Texas, women from the western part of the state would have had to travel hundreds of miles to get to such a center.
The court also struck down the admitting-privileges provision. Many hospitals refuse to extend privileges to such doctors because of the controversy over abortion. Breyer said the state could not cite “a single instance” where a doctor’s admitting privileges at a local hospital would have led to better treatment for an abortion patient.
Breyer’s matter-of-fact opinion did not directly question the motives of Texas lawmakers who adopted House Bill 2. But Justice Ruth Bader Ginsburg spoke more directly in a short concurring opinion.
“It is beyond rational belief that HB 2 could genuinely protect the health of women,” she said. “Women in desperate circumstances may resort to unlicensed rogue practitioners … at great risk to their health and safety.”
Ginsburg, a longtime champion of abortion rights, said state laws that single out abortions should be invalidated.
“Targeted-regulation-of-abortion-provider laws like HB 2 that do little or nothing for health, but rather strew impediments to abortion … cannot survive judicial inspection,” she said.
Besides Kennedy and Ginsburg, Justices Sonia Sotomayor and Elena Kagan joined Breyer.
Abortion-rights advocates said the ruling sends a clear warning to states attempting to restrict abortion.