Supreme Court Strikes Down Texas’ Anti-Choice Law Because Restrictions Impose “An Undue Burden On Abortion Access”

NY Times: Supreme Court Rules 5-3 That HB 2 Is Unconstitutional And Represents “An Undue Burden On Abortion Access.” On June 27, the Supreme Court ruled 5-3 that Texas’ anti-choice law HB 2 was unconstitutional. The New York Times’ Adam Liptak wrote that the decision struck “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.” Passed in 2013, HB 2 required that abortion providers have admitting privileges to a hospital within 30 miles of their clinic and that clinics meet the standards of ambulatory surgical centers (ASCs). Liptak noted that the majority opinion was written by Justice Stephen Breyer, who was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan while “Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.” Liptak quoted Breyer’s decision, which said that each restriction “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.” From The New York Times:

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.

[...]

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.

[...]

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 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.” [The New York Times, 6/27/16]

Here Are Five Times Cable News Debunked Misinformation About HB 2 After The Supreme Court Issued Its Decision

1. MSNBC’s Irin Carmon: Data In Record Provides A “Very Definitive Debunking” Of Texas’ Argument That The Law “Was For Women’s Own Good.” After the Supreme Court released its decision in Whole Woman’s Health v. Hellerstedt, MSNBC’s Irin Carmon explained the significance of Justice Stephen Breyer’s reliance on evidence from “respected public health researchers” in writing the majority opinion. According to Carmon, Breyer’s insertion of this data into “the Supreme Court record” serves as “a very definitive debunking” or “definitive rejection of the evidence that Texas brought saying this law was for women’s own good.” From the June 27 edition of MSNBC Live:

ROBERT THOMAS (HOST): MSNBC’s Irin Carmon is with me and she has been covering this story from the very beginning. And one of the points, and I know that this has been interesting for those who have been following it closely, is the amount of data that the courts were asking for, to provide the facts about potential undue burden. And did Texas provide the proper data?

IRIN CARMON: Well, as I reported on NBCNews.com over the weekend, a state employee and the ACLU of Texas accused Texas of holding back official statistics that could have shown the impact of the law at stake. Now that wasn’t the only information we had, but Texas said that you had to wait to see what impact it had on women on the ground before really relying on other evidence. But what this opinion does, Justice Breyer relies heavily on public health researchers that testified on behalf of the clinics. And basically what they were saying is, “Texas says this law is going to make women healthier,” “it’s going to protect women from clinics that might be predatory” and so on. “This is for women’s own good.”

This strongly condemns that argument and says that the evidence actually shows that Texas’ law makes women less safe, because they have to wait longer, they have to drive further distances, they’re less likely to choose the method of abortion that they want. Women in rural areas are left out in the cold particularly. So what this decision does in great detail, Justice Breyer engages with that research that came from the outside respected public health researchers, and he puts it in the Supreme Court record, which is a very definitive debunking, where it’s a very definitive rejection of the evidence that Texas brought saying that this law was for women’s own good. [MSNBC, MSNBC Live, 6/27/16]

2. Candice Russell: “I Have Had More Invasive Surgeries Done At My Dentist's Office Than My Abortion.” CNN guest host Pamela Brown talked with Candice Russell, a Texas woman who traveled to California in order to obtain an abortion, about her experience. In reaction to a clip of an anti-choice activist claiming HB 2 was meant to protect women’s health, Russell explained that her abortion “was very simple” and that “all of the stressors” that she encountered in the process “came from HB 2” not the procedure itself. In fact, Russell noted, “I have had more invasive surgeries done at my dentist’s office than my abortion.” From the June 27 edition of CNN Newsroom:

PAMELA BROWN (GUEST HOST): And my next guest, Candice Russell, was personally impacted by Texas' House Bill 2. She says it forced her to fly to California to end her pregnancy. Candice joins me now from Austin. So first off, Candice, tell us your story.

CANDICE RUSSELL: So, I found out that I was pregnant the spring after Wendy Davis' filibuster, and because I had an IUD, which was stopping my period, I didn't find out until I was about 12 weeks along. I at the time had a job that didn't have [paid time off] and I called the clinics. Clinic closures had already started to happen in the state, so even though I lived in Dallas, where we still had our clinics open, the influx of people coming from other cities meant that when I called to make an appointment it was going to be a two-and-a-half or three-week wait. With the Texas laws the way that they are, appointments actually have to have two days and I was really concerned that if I made it to one appointment that I wouldn't get the next day off for work and then I was going to have to wait another three weeks and I was going to push up against that 20-week ban. So I was dating somebody who lived in California at the time, and we called and made an appointment and I was back within the week. I had to take out a payday loan, it was really, really high interest. I think I paid about $2,500 for a $600 loan to get on a plane, but I also know how lucky I am to be able to do that. Not everybody has the privilege of even borrowing money to do that. I think it really kind of illustrates how much burden those laws were putting on the women of Texas.

BROWN: In the last hour, Candice, I spoke to an anti-abortion advocate who says this bill was not about stopping abortions but it was about keeping up the standards of women's health. Let's listen.

[START VIDEO]

GENEVIEVE WOOD: This was not a case that said we're going to outlaw abortion. It simply said if you're an abortion clinic, you have got to meet certain cleanliness standards and sanitation standards so that the women walking through your doors are going to get the best health care possible.

BROWN: So to you this was just about women's health? It didn't have anything to do with stopping abortion in the state?

WOOD: There was nothing about the law that would stop an abortion. If a clinic didn't meet the right standards, there was nothing that said they couldn't come up to standards. We ought to be very concerned about what people are walking into. We ought to be as concerned about women's health as we are their right to abortion. And at the end of the day, the special interests won here, the abortion lobby, not women.

[END VIDEO]

BROWN: All right so Candice, what is your response to that based on what you experienced?

RUSSELL: For me it's -- I have had more invasive surgeries done at my dentist's office than my abortion. My abortion was very simple, it very easy. The most traumatic part of my experience was the stress of having to come up with the money to go out of state. The stress of travel, of having to get on a plane after having a very basic surgical procedure. And all of those things, all of the stressors that I went through with my abortion, came from HB 2. It wasn't the abortion itself; it was from the law.

BROWN: All right. Candice Russell, we'll leave it there. Thank you so much for coming on, sharing your story with us. [CNN, CNN Newsroom, 6/27/16]

3. MSNBC’s Ari Melber: Supreme Court Rebuked Argument That HB 2 Was “All About Clinics And Safety” And Set The “Strongest Pro-Choice Precedent … In A Generation.” MSNBC’s Ari Melber discussed the significance of the court’s decision in Whole Woman’s Health v. Hellerstedt and called it the “strongest pro-choice precedent … in a generation.” In an appearance on MSNBC Live he explained that although Texas’ argument “was that this was all about clinics and safety,” the Supreme Court’s decision “rejected the rationale for the law” decisively. From MSNBC Live:

ARI MELBER: When we look at abortion rulings in the federal courts and the Supreme Court, we often see a real caution. Roe v. Wade remains controversial politically, but it's been the law of the land for a long time. This decision, in having more time with it, is really robust with Justice Kennedy, who I mentioned is a Republican appointee, in laying down the law that you cannot just go out and say to women, “Well, here's a bunch of technicalities that close a bunch of clinics.” And so let me read from the opinion. It says, look, “In the face of no threat to women's health” -- the idea that, as we've been reporting, they rejected the rationale for the law -- again, reading from the opinion, quote, “Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity super-facilities. Patients seeking these services less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.” And it basically makes the argument that this is all unfair to women, even though, as we've mentioned, the Texas argument, the pro-life argument, was this was all about clinics and safety. And so then, to the question you were posing a little earlier, where does this go in 2016 and the politics of this?

This is a real roadblock to these pro-life efforts, and it's a reminder that again, the pro-life team got a bad ruling today because they pushed so far through Texas. So in the intersection between politics and law, it really raises the question for folks who may want to push this far, was this in their interest? Because now they've put a new precedent on the books, I think arguably now looking at it the strongest pro-choice precedent since Planned Parenthood v. Casey, in a generation, in 25 years, precisely because they pushed so far in a conservative state like Texas. So I would expect some regrouping here, yes. The politicians in both parties are going to have a strong initial reaction. But the larger question in the politics of the pro-life movement is, was this a good idea? I don't think if they knew they were going to get this 5-3 decision, wiping out the law and saying it's impossible in every other state, that they would have done this to begin with. [MSNBC, MSNBC Live, 6/27/16]

4. Nancy Northup: Supreme Court’s Decision Is A “Game Changer” That Shows “Science … And Facts Matter” In Establishing Abortion Precedents. Speaking with MSNBC’s Chris Hayes, the president and CEO of the Center for Reproductive Rights, Nancy Northup, called the Supreme Court’s decision a “game changer” for litigation against restrictive abortion legislation. Northup argued that the decision would “make a huge difference” in the fight against laws like HB 2 around the country because it made “clear that you’ve got to have a medical justification” to restrict abortion access. According to Hayes, the Supreme Court found Texas’ insistence that HB 2 was a health regulation and “not about abortion” uncompelling. Northup agreed, adding, “What was satisfying about today’s opinion is that the court made clear that evidence matters and science matters and facts matter and reasoned opinions by courts matter.” From the June 27 edition of All In With Chris Hayes:

CHRIS HAYES (HOST): Nancy, this strikes me as a big victory for abortion rights in this country. Talk about the scope of this. What does this decision mean today?

NANCY NORTHUP: Well this was a complete and total win today and we are just thrilled. The Supreme Court could not have been clearer that states can’t do what Texas had done, which is to use sneaky means to pass pre-textual health laws that in fact were designed to shut down abortion clinics. And so it’s big for Texas, because the clinics that are open now will stay open and there’s the promise of more clinics being able to open, but it’s also a game changer around the country because we have been fighting these restrictions on abortion. And over the past five years, there’s just been an avalanche of them. And court after court have blocked them, but they just keep popping up again like a game of whack-a-mole. And today’s decision is so clear that you’ve got to have medical justification if you’re going to pass these kinds of regulations and you cannot burden women the way that that these regulations have been. And it’s going to make a huge difference as we’re fighting this battle around the nation.

HAYES: You talk about medical justification, you used the word “sneaky.” What always struck me about this case, right is that when this happened in Texas and Wendy Davis the famous filibuster opposing it, everyone understood what this was about. Opponents of abortion were trying to restrict access to abortion. Everyone understood that. People who favor abortion rights, people who oppose abortion. And yet what you had was the state of Texas going into court after court and saying with a straight face -- talking to federal judges -- “No, this was not about abortion.” And it’s just so manifestly, obviously bad faith there was something satisfying about essentially the court just saying that today -- we all know what this is about.

NORTHUP: Absolutely. What was satisfying about today’s opinion is that the court made clear that evidence matters and science matters and facts matters and reasoned opinions by courts matter. As a lawyer, it was tremendously gratifying to see that finally reason and justice prevailed. And that’s important. And again, because this standard is so clear that the Supreme Court set out today, we are in a moment making a pivot and a change in what has been a fight around access. And so we’re not going to stop -- the fight continues today to make sure that all these kinds of regulations don’t stand so that wherever you live, you can have access to your constitutional rights.

HAYES: So you have eight justices on the court. It was a 5-3 majority. I think a lot of people watching the case or some people thought it would come down this way, there’s a fairly good likelihood. It was interesting that it was not Kennedy, who’s often the swing-vote on abortion, who wrote the decision, but Justice Breyer -- and presumably it was Kennedy essentially giving the opinion to Breyer, Breyer saying abortions taking place in an abortion facility are safe, indeed safer than numerous procedures that take place outside hospitals to which Texas does not apply its surgical center requirements. Is there a significance for the future of abortion law before the court from this decision today?

NORTHUP: Well, I think what’s significant is that today the Supreme Court restored the promise of Roe v. Wade for the next generation of women. For over 40 years the court again and again at these crucial moments, when we get to the cliff on these things --

HAYES: The brink.

NORTHUP: Has always -- yes -- has always come back to say, “No. Women’s ability to control their lives, to make these decisions matter. The constitution matters and it’s going to be protected.” And to see once again, 24 years after that case and Kennedy’s decision in Casey, to have that reaffirmed, is hugely, hugely important. And I think what it’s time for is responsible state legislatures to stop passing these laws, to respect women’s rights and to make sure that we are not continuing this game of whack-a-mole. [MSNBC, All In With Chris Hayes, 6/27/16]

5. Wendy Davis: Supreme Court’s Opinion Saw “Through The Sham Law” That “In No Way” Made “Women Safer.” Former Texas state Sen. Wendy Davis and reproductive rights activist Sarah Slamen appeared on a panel together during MSNBC’s Last Word with Lawrence O’Donnell to discuss the Supreme Court’s decision. According to both Davis and Slamen, the 5-3 ruling against HB 2 represented a victory for Texas women and showed that the justices saw “through the sham law and understand that in no way did it make women safer ... and in fact did the opposite.” Slamen also noted that in spite of Texas officials’ refusal to “release research” and statistics that would prove the impact of the law, the justices “got straight to the point” and determined HB 2 was detrimental to women’s health. From the June 27 edition of MSNBC’s Last Word With Lawrence O’Donnell:

ARI MELBER (GUEST HOST): I’m joined tonight by two Texans. Wendy Davis former member of the Texas state senate and a Clinton supporter who filibustered of course on the floor of the Texas senate for 11 hours in 2013 protesting the bill. And Sarah Slamen, a reproductive justice activist, also a protester from the original fight. Wendy Davis, let me start with you. You knew how this all started. Did you know how it would end today?

WENDY DAVIS: I hoped it would end as it did today. And honestly I remained optimistic as the case sat before the U.S. Supreme Court. We’ve seen Justice Kennedy step up before and I believed that he would do it in this instance. I hoped that he would do as he did and see through the sham law and understand that in no way did it make women safer in Texas and in fact, did just the opposite. So, I was thrilled with the result.

MELBER: Sarah, you look at Justice Ginsburg’s opinion and she really bore down on this idea that what Texas wanted and what courts sometimes do is defer to what the legislature said, “Hey, this is for health,” “hey this is for women,” “we did this all to help women.” That may be untrue, as the majority opinion found, and beyond that, it may be downright patronizing. Here’s Justice Ginsburg: “When a state severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners … at great risk to their health and safety.” What do you think of her point, that if anything this type of abortion restriction puts women in danger?

SARAH SLAMEN: Justice Ginsburg was absolutely right. Thanks, Ari, for having us Texans on to discuss this, by the way. We know through our studies after the law was enacted that self-abortions were on the rise in Texas and as Ginsburg also noted in her opinion today, the state of Texas refused to release research on it and actually could not provide any examples where women’s health had been assisted by the law. So what she did was very clearly cut through the politicized ruling that the Fifth Circuit had kind of been hedging on for the past few years and got straight to the point: If you’re going to make health care the standard, well then let’s talk about the state of women’s health care in Texas.

MELBER: Right, she certainly flipped it on them and said, “Great I welcome a conversation about what is good for women as patients or as potential patients, whatever the case may be.” Wendy, let me read to you from -- or let me play for you, rather -- Greg Abbott, who at the time, as we all know, was Texas attorney general, on the appeal here. Take a listen to him here. [MSNBC, Last Word With Lawrence O’Donnell, 6/27/16]