Supreme Court Invalidates Texas Abortion Restrictions

Supreme Court Rules That Texas Violated The Constitutional Right To Abortion. On June 27, the Supreme Court reached a 5-3 decision in Whole Woman’s Health v. Hellerstedt, holding that Texas’ requirements that abortion providers meet the regulatory standards of ambulatory surgical centers, and that doctors have admitting privileges at a nearby hospital, constitute “an undue burden on abortion access.” 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.

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.” [The New York Times, 6/27/16]

ABC, CBS Evening News Aired False Claims That HB 2 Was Necessary To Make Abortion Safe

ABC’s Mary Bruce: HB 2 Supporters Say “Women’s Health Will Now Be At Risk.” ABC’s Mary Bruce allowed anti-choice activist Kristan Hawkins to push the false claim that Texas’ abortion restrictions were about protecting women’s health. Hawkins said the Supreme Court’s ruling not only jeopardizes women’s health but also that women seeking abortion procedures at health clinics will now have to wonder if they’ll “be coming out alive.” From the June 27 edition of ABC World News Tonight with David Muir (emphasis added):

GEORGE STEPHANOPOULOS: We begin tonight with the most sweeping decision on abortion in a generation. Today, the Supreme Court struck down a Texas law that imposed strict requirements on clinics and doctors, finding those limits placed an undue burden on the constitutional right to abortion. And on the steps of the Supreme Court, you see it there, activists squared off. Jubilation from the pro-choice side, but despair from anti-abortion forces, because this ruling could affect so much of the country. At least two dozen states have passed laws similar to those struck down today. ABC's Mary Bruce is in Washington with the dramatic decision and its resounding consequences.

MARY BRUCE: At the Supreme Court today, chants of victory from abortion rights advocates. The crowd cheering as interns raced out, carrying the most consequential abortion decision in a quarter of a century. Many of these people have been here since before dawn, making sure they were here to witness this historic decision. The court striking down a Texas law that required abortion providers have admitting privileges at a nearby hospital, and that clinics meet standards for surgical centers. Requirements that have already forced more than half of Texas abortion clinics to close, and threatened half of those still open. In a 5-3 decision, Justice Kennedy, the swing vote, joined the court's four liberals to rule that the restrictions went too far, and placed “an undue burden” on the constitutional right to an abortion. Disappointed, the law's supporters say women's health will now be at risk.

KRISTAN HAWKINS: This means every time a woman walks into an abortion facility in our nation, she's going to have to wonder, will I be coming out alive?

BRUCE: The implications stretch far beyond Texas. About two dozen states have similar laws.​

KATE SHAW: Many states have restrictions like Texas', and I think those are quite likely unconstitutional after today's ruling.

BRUCE: And the decision could call into question many other restrictions, such as a required waiting period, counseling, and ultrasounds before abortions.

STEPHANOPOULOS: And Mary joins us from the Supreme Court right now. Mary, the future of the Supreme Court, right at the heart of the presidential campaign. You've got that vacancy left by the death of Justice Scalia, and perhaps more to come.

BRUCE: Yes, this decision underscores what's at stake in this election. Clinton tweeting today, “This fight isn't over. The next president has to protect women's rights.” And Donald Trump has been noticeably absent from commenting on today's ruling. George?

STEPHANOPOULOS: Yeah, uncharacteristic silence. OK, Mary, thanks very much. [ABC, ABC World News Tonight with David Muir, 6/27/16]

CBS’ Jan Crawford: Dissenting Justices Say These Laws Could Have Prevented Gosnell Case. CBS reporter Jan Crawford uncritically reported that the three dissenting justices in Whole Woman’s Health v. Hellerstedt claimed HB 2 could have prevented Pennsylvania’s Gosnell case, referring to the illegal operations of Philadelphia abortion provider Kermit Gosnell. From the June 27 edition of CBS’ CBS Evening News with Scott Pelley (emphasis added):

JAN CRAWFORD: But Carrie Severino, head of the conservative Judicial Confirmation Network, said the decision was based on politics.

[BEGIN CLIP]

CARRIE SEVERINO: This court has been so clear in their political leanings on this issue that I can't imagine an abortion regulation that they would uphold at this point. That's unfortunate.

[END CLIP]

CRAWFORD: Now the three dissenting justices called the ruling indefensible and said the court rewrote legal rules to reach today's result. They said these laws were intended to shut down unsafe clinics, Charlie, and they said if they had been on the books in Pennsylvania, it would have prevented the death of that patient and three infants at the clinic there. [CBS, CBS Evening News with Scott Pelley, 6/27/16]

Supreme Court Majority Opinion Says Restrictions Are Medically Unnecessary And Impose “An Undue Burden On Abortion Access”

Justice Stephen Breyer: Requiring Doctors To Have Admitting Privileges Imposes A “Substantial Obstacle” On Abortion Access And Addresses “No Significant Health-Related Problem.” In the majority opinion of the Supreme Court, Justice Stephen Breyer affirmed the original District Court decision that HB 2’s admitting privileges requirement places a “substantial obstacle in the path of a woman’s choice.” Breyer argued that due to the overwhelming safety of abortion procedures, “there was no significant health-related problem that the new law helped to cure.” He continued that there was “nothing in Texas’ record evidence” proving HB 2 improved patient care and that when asked to name “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.” Although the court found there was no medical benefit to requiring admitting privileges, Breyer concluded that the impact of subsequent clinic closures because of HB 2 clearly represented “an undue burden” on abortion access. From Justice Breyer (emphasis added, citations removed):

The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure. But the District Court found that it brought about no such health-related benefit. The court found that “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” Thus, there was no significant health-related problem that the new law helped to cure.

[...]

We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.

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.

[...]

At the same time, the record evidence indicates that the admitting-privileges requirement places a “substantial obstacle in the path of a woman’s choice.” The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. Eight abortion clinics closed in the months leading up to the requirement’s effective date. … Eleven more closed on the day the admitting-privileges requirement took effect.

[...]

In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect,the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000.” We recognize that increased driving distances do not always constitute an “undue burden.” But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion. [Supreme Court of the United States, Opinion of the Court, Whole Woman’s Health v. Hellerstedt, 6/27/16]

Justice Stephen Breyer: ASC Requirements “Would Be Harmful To, Not Supportive Of, Women’s Health” And Are “Nearly Arbitrary” When Applied To Abortion Clinics. The Supreme Court struck down HB 2’s requirement that abortion clinics meet the standards of ambulatory surgical centers (ASCs). In the court’s opinion, Breyer wrote, “There is considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary.” In fact, he argued there was a greater chance that ASC requirements “would be harmful to, not supportive of women’s health.” Breyer wrote that ASC requirements offer “no benefit” to patients seeking a nonsurgical abortion and are “inappropriate as applied to surgical abortions.” Quoting the District Court, Breyer concluded that evidence supported its finding that ASC requirements “have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary.” From Justice Breyer (emphasis added, citations removed):

There is considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary. The District Court found that “risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.” The court added that women “will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility.” And these findings are well supported.

The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost always arise only after the patient has left the facility. 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. The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). 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. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions. These facts indicate that the surgical-center provision imposes “a requirement that simply is not based on differences” between abortion and other surgical procedures “that are reasonably related to” preserving women’s health, the asserted “purpos[e] of the Act in which it is found.”

Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling, wall, and floor finishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity control can help reduce infection where doctors conduct procedures that penetrate the skin. But abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, provide any help to abortion patients, as abortion facilities do not use general anesthesia or deep sedation. Further, since the few instances in which serious complications do arise following an abortion almost always require hospitalization, not treatment at a surgical center, surgical-center standards will not help in those instances either.

The upshot is that this record evidence, along with the absence of any evidence to the contrary, provides ample support for the District Court’s conclusion that “[m]any of the building standards mandated by the act and its implementing rules have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary.” That conclusion, along with the supporting evidence, provides sufficient support for the more general conclusion that the surgical-center requirement “will not [provide] better care or . . . more frequent positive outcomes.” The record evidence thus supports the ultimate legal conclusion that the surgical-center requirement is not necessary.

At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The parties stipulated that the requirement would further reduce the number of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth. In the District Court’s view, the proposition that these “seven or eight providers could meet the demand of the entire State stretches credulity.” We take this statement as a finding that these few facilities could not “meet” that “demand.”

[...]

More fundamentally, 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 super facilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand, may find that quality of care declines. Another common sense inference that the District Court made is that these effects would be harmful to, not supportive of, women’s health. [Supreme Court of the United States, Opinion of the Court, Whole Woman’s Health v. Hellerstedt, 6/27/16]

Justice Stephen Breyer: HB 2’s Restrictions Would Not Have Been “More Effective Than Pre-Existing Texas Law At Deterring Wrongdoers Like Gosnell.” In response to the invocation of “the Kermit Gosnell scandal” in the minority’s dissent, Breyer argued that although “Gosnell’s behavior was terribly wrong,” “there is no reason to believe that” the restrictions imposed by HB 2 would have been “more effective than pre-existing Texas law at deterring wrongdoers like Gosnell.” He continued that Gosnell’s illegal operations were actually an example of Pennsylvania’s failure to regularly inspect medical facilities and not evidence of a widespread lack of safety in abortion care. Breyer explained, “Determined wrongdoers … are unlikely to be convinced to adopt safety practice by a new overlay of regulations,” making HB 2 no more effective than the “numerous detailed regulations covering abortion facilities” that were already in effect in Texas -- one of which requires an annual inspection of all clinics. From Justice Breyer (emphasis added, citations removed):

In the same breath, the dissent suggests that one benefit of H. B. 2’s requirements would be that they might “force unsafe facilities to shut down.” To support that assertion, the dissent points to the Kermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He “staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal procedures; and inadequate emergency access for when things inevitably went wrong.” Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior. [Supreme Court of the United States, Opinion of the Court, Whole Woman’s Health v. Hellerstedt, 6/27/16]

PBS, NBC Highlight Overwhelming Evidence That HB 2’s Restrictions Would Not Increase Safety

NBC Reports That Court Said HB 2 “Makes No Sense” For Many Women. NBC reporter Pete Williams highlighted the Supreme Court opinion that HB 2 does not make sense for “the majority of women.” Williams also pointed out this ruling is “a blow” to pro-life advocates and their “strategy of pushing for restrictions on doctors … instead of patients.” From the June 27 edition of NBC’s NBC Nightly News with Lester Holt:

LESTER HOLT (HOST): Good evening, the U.S. Supreme Court has issued the most significant ruling on abortion in 25 years, delivering a stunning rebuke for the state of Texas, for a law that imposes some of the toughest abortion restrictions in the nation. Supporters said the law simply raised health and safety standards for abortions, but the court saw it as something else. And tonight it's ruling is reverberating across a dozen other states. NBC news justice correspondent Pete Williams has details.

[...]

PETE WILLIAMS: With Justice Anthony Kennedy joining the four liberals, the 5-to-3 vote said the Texas law imposed obstacles on a woman's right of access to abortion without any medical benefits. The law said abortion clinics must meet the same medical construction standards as walk-in physical centers, but the court says that makes no sense for the large number of women whose abortions require taking only pills, not surgery. Twelve other states have adopted similar restrictions, some now on hold. Today’s ruling means they're now in trouble.

[...]

WILLIAMS: For those opposed to abortion, the ruling is a blow to their strategy of pushing for restrictions on clinics and doctors instead of patients. [NBC, NBC Nightly News with Lester Holt, 6/27/16]

PBS NewsHour Featured Nancy Northup Who Said HB 2 Wasn’t “Justified On Medical Grounds At All." PBS NewsHour host Gwen Ifill discussed the decision with the Center For Reproductive Rights’ Nancy Northup, who explained that HB 2 was an “underhanded law” that did not protect women’s health as it claimed. Ifill also brought on the Alliance Defending Freedom’s Steven Aden, asking him “what worked and what didn’t in your argument to keep those, or to limit the scope of these, abortion clinics.” In response, Northup outlined evidence from the decision to debunk the “sham” argument that laws like HB 2 are based on protecting women’s health and safety. From the June 27 edition of PBS NewsHour:

GWEN IFILL (HOST): Tell us what the effect is of this ruling -- in a small sense, what happens in Texas, and in a broader sense, what happens around the country?

NANCY NORTHUP: This was a tremendous victory today. It was just a clear-out win. And so what that means for Texas is that the clinics that are currently open in Texas can stay open -- they were threatened to be closed by this underhanded law -- and also that other clinics would be able to reopen. You know, one of the things that happened with HB 2 was that it devastated abortion acts in Texas, closing half of the laws under which the Supreme Court said today was unconstitutional because they weren't justified on medical grounds at all.

IFILL: So Steven Aden, what worked and what didn’t in your argument to keep those, or to try to limit the scope of these, abortion clinics?

STEVEN ADEN: Well we believe it's unfortunately a big disappointment and a big loss for women's health and safety. All Texas was trying to do was regulate abortions the same way and the same manner as other similar outpatient abortion procedures. If you or I go in for a colonoscopy or a laparoscopy, chances are very good that our doctor will have admitting privileges because once in a while, something goes wrong, and if something goes wrong you want the best standard of health care available to help you. And that's all that Texas was trying to do. And the fact the Supreme Court would strike this law down by one vote, which it did, does not augur well, unfortunately, for women's health.

[...]

IFILL: Nancy Northup, what about this argument that this was something affecting women’s health -- in fact, that the law was designed to protect women’s health?

NORTHUP: Well, I think the Supreme Court made clear today that this was a pretext -- he idea that was about women’s health -- because as the American Medical Association and others saw, it didn’t advance women’s health, and in fact, it hurt it, by putting so many women out of reach of being able to get abortion services. It’s a game-changer, the decision from the Supreme Court today, which is why we’re excited about it, because we’ve been fighting these kind of sham laws for years. And the Supreme Court’s really made clear that you have got to have a justification if you’re going to regulate abortion and that you have to make sure that the burden does not overwhelm the justification that the law has or it can’t stand. [PBS, PBS NewsHour, 6/27/16]