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Abortion rights advocates aren’t used to winning. But Monday’s unambiguous, 5-3 victory against Texas’ abortion restrictions hands them a weapon against at least some of the more than 250 new state laws limiting access to the procedure.
“We expect to be relying on it heavily in our cases moving forward,” said Nancy Northup, president of the Center for Reproductive Rights, which represented the abortion clinics in Whole Woman’s Health v. Hellerstedt.
Perhaps the most important part of the decision to supporters of abortion rights is how strongly the court laid down an evidence-focused standard by which it judges restrictions on abortion.
From the beginning, the trick for challengers to the Texas law was that the state didn’t openly seek to ban abortion, which the court has repeatedly said would be unconstitutional. Instead, the state argued that its requirements that abortion providers have local hospital admitting privileges and work only in expensive ambulatory surgical centers were intended to promote women’s health. The first part of the law shuttered half of the state’s clinics, and the second, not yet in effect, threatened to leave only nine or ten providers in the entire state.
The court said that didn’t pass the laugh test. “In the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities,” Justice Stephen Breyer wrote sternly for the five-justice majority in Whole Woman’s Health.
“We have found nothing in Texas’ record evidence that shows that … the new law advanced Texas’ legitimate interest in protecting women’s health,” Breyer wrote. “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.” (Breyer himself posed that question to Texas’ solicitor general.)
The proper way to approach Texas’ abortion law, the majority concluded, was to weigh the “asserted benefits against the burdens.”
Justice Ruth Bader Ginsburg went even further. “It is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions,’” she wrote of the law in her concurrence.
All this was a sharp rebuke to the 5th U.S. Circuit Court of Appeals, which, ruling on the same law, declared, “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.” Another 5th Circuit ruling on the law quoted an unrelated case to assert that “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”
In other words, it was enough that Texas said the law was to protect women. No further investigation needed — say, into the fact that the American Medical Association and the American College of Obstetricians and Gynecologists said that the law was medically unnecessary.
“The court actually is saying it cares about the record evidence, the facts,” said Priscilla Smith, a senior fellow for the Program for the Study of Reproductive Justice at Yale Law School and a former abortion rights litigator. The court’s majority, she said, had decided that “this is not a case of ‘he said, she said,’ as in, ‘Texas says it’s about health, the advocates say it’s not.’ It’s a case of ‘he said, and then she proved him wrong.’”
All of that is a far cry from the last time the court ruled on abortion, in 2007, when Justice Kennedy authored a majority opinion upholding the federal Partial-Birth Abortion Ban and chilled abortion rights advocates with his affirmation of a major anti-abortion talking point. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Kennedy wrote in Gonzales v. Carhart.
“It’s an incredibly encouraging development,” said Stephanie Toti, who argued the case for the Texas clinics before the court in March. “The court is saying these laws need to be evidence-based. States can’t just make up bogus reasons for enacting these restrictions that deprive women of access to essential reproductive healthcare.”
Most immediately, the decision will apply to clinic restrictions enacted beyond Texas. According to the Guttmacher Institute, ten states have admitting privileges requirements in effect that are similar to the Texas requirement, and there is ongoing litigation in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin that will now almost certainly end in the laws getting struck down.
It remains to be seen whether the decision could apply even further. “Some of the abortion restrictions we’ve seen enacted in recent years are like the Texas restrictions in that they are not based on evidence,” Toti said. "They are sham measures based on deception and pretext. If we apply the standards in cases in other restrictions, we’ll see them struck down as well.”
Abortion rights advocates have pushed back against state laws that are premised on the disputed notion that fetuses can feel pain at 20 weeks, or that require doctors to offer counseling that goes against the vast majority of medical evidence about abortion’s risks to women.
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The Whole Woman’s Health majority makes a point of repeating that abortion is currently extremely safe for women. “The record also contains evidence indicating that abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” Breyer wrote, continuing, “Nationwide, childbirth is 14 times more likely than abortion to result in death … but Texas law allows a midwife to oversee childbirth in the patient’s own home.”
Ginsburg quoted the medical associations’ brief to note that “abortion is one of the safest medical procedures performed in the United States.”
Of course, that alone may not be enough to undo the other kinds of restrictions that do not effectively shut down clinics. “At least with this Supreme Court, with Justice Kennedy, restrictions that are packaged as informing women’s decisions may be treated differently, I think,” said Dawn Johnsen, a professor at Indiana University Maurer School of Law.
For now, the opinion strikes a definitive blow against a two-pronged anti-abortion movement strategy: To focus on incremental, “common sense” regulations that slowly chipped away at abortion access, and to pass laws that rebutted claims that they didn’t care about women or their health.
Kennedy, who came to the anti-abortion movement's side in 2007, no longer looks so ready to follow where they lead. With only a single vote determining the case’s outcome, it now appears that only a change in the court’s composition will yield a better result for the movement to ban abortion.
“What do they do now?” Smith said. “They try to get Trump elected.”