Supreme Court Strikes Down Texas’ Anti-Choice Law Because Restrictions Are Medically Unnecessary And 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 reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.” 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 struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

[...]

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposes strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “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]

In The Majority Opinion, Breyer Debunked Major Anti-Choice Myths Propagated By Right-Wing Media

1. Right-Wing Media Argued Admitting Privileges And Ambulatory Surgical Center (ASC) Requirements Were Medically Necessary

Fox Correspondent Trace Gallagher: HB 2 Requirements Exist Because “Texas Lawmakers” Are “Simply Looking Out For The Well-Being Of Women.” Fox News correspondent Trace Gallagher highlighted Texas lawmakers' argument that the requirements of HB 2 were intended to protect women from supposedly unsafe abortion procedures. On the November 13, 2015, edition of Shepard Smith Reporting, Gallagher reported that “Texas lawmakers argue they're simply looking out for the well-being of women, saying better equipment and more staffing helps alleviate the dangers that are associated with abortion.” He failed to note that a majority of major medical organizations have found the restrictions unnecessary. [Fox News, Shepard Smith Reporting, via Media Matters, 11/13/15]

Fox's Kirsten Powers: Restrictions On Abortion Clinics Are Meant To Keep Women Safe. Fox contributor Kirsten Powers appeared on the July 15, 2014, edition of Fox News' The O'Reilly Factor to discuss the Women's Health Protection Act, which would prohibit states from targeting abortion with unnecessary restrictions like waiting periods and specialized medical standards for clinics. Powers claimed that state laws restricting access to abortion “were put in place to make abortion clinics safe”:

BILL O'REILLY (HOST): So, there was a hearing today in Congress on this [the Women's Health Protection Act], and how do you see it, Kirsten?

KIRSTEN POWERS: Well, first of all, it's obviously an election year stunt. This probably won't even pass the Senate, let alone the House, and this is something to get the women ginned up in the Democratic Party base, who, as you know, have been ginned up before in the so-called “War on Women,” and I think this is part of that strategy. I also think that this is destructive because most of the laws that I think that they would like to roll back are laws that were put in place to make abortion clinics safe. For example, like the Gosnell clinic in Pennsylvania. These types of laws were created to respond to what happened to women. There was a woman who died. There were multiple women who died there. [Fox News, The O'Reilly Factor via Media Matters, 7/15/14]

Fox's Senior Judicial Analyst Argued That HB 2 Was About Patient Safety. During the October 15, 2014, edition of America's Newsroom, Fox News senior judicial analyst Andrew Napolitano insisted that Texas passed HB 2 for patient safety and emphasized that the bill focused on “the credentials of the physicians who performed the abortions.” [Fox News, America's Newsroom, 10/15/14]

Fox Contributor Claims Clinic Closure Risk Is “Hyperbole” And Mocks Idea Women Will “Flee to Tijuana” To Receive Abortions. During the June 26, 2013, edition of Fox News' America Live, Megyn Kelly asked Fox contributor Monica Crowley whether the concerns over clinic closures in Texas were valid. In response, Crowley criticized pro-choice advocates, arguing that their concerns were unfounded because “they always try to go right to hyperbole.” As an example, Crowley suggested the idea that “women are going to have to flee to Tijuana” to receive abortions was “ridiculous.” From America Live:

MEGYN KELLY (HOST): They claim, Monica, that something like 42 abortion clinics in the state of Texas right now, and that they all have to be licensed as ambulatory surgery centers, it will reduce the number of abortion clinics to five and people are gonna have to go to Mexico now if they want to get abortions.

MONICA CROWLEY: This is a standard argument that they always use -- the pro-abortion lobby -- they always try to go right to hyperbole, that “women are going to have to flee to Tijuana” because they're not going to be able to have access in Texas to abortion. It's all ridiculous. [Fox News, America Live, via Media Matters, 6/26/13]

FACT: Admitting Privileges Are Not Medically Necessary, And They Represent A “Substantial Obstacle” To 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.

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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]

FACT: ASC Requirements “Would Be Harmful” To Patients And Have “A Tangential Relationship” To Abortion Safety

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 also 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 non-surgical 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.”

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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]

2. Right-Wing Media Consistently Claimed That HB 2 Protects Women From “Future Dr. Gosnells”

Fox Contributors Argue HB 2's Restrictions Are “Completely Reasonable”; Say “Probably One Of The Women Who Died Wouldn't Have” If Gosnell “Had Met Some Of These Requirements.” On the June 26, 2013, edition of Fox News' America Live, Megyn Kelly hosted Fox contributors Kirsten Powers and Monica Crowley to discuss the failure of the Texas legislature to pass an earlier version of HB 2. During the segment, Powers argued that “what Texas is trying to do is exactly the same as what they did in Pennsylvania after the Gosnell tragedy” -- referring to the illegal operations of Philadelphia abortion provider Kermit Gosnell. Crowley further disputed the dangers associated with greater clinic restrictions, stating that HB 2 was ”completely reasonable," and Powers said that “one of the women who died wouldn't have” if Gosnell had “met some of these [HB 2's] requirements”:

MEGYN KELLY (HOST): [Texas Republicans] wanted to restrict abortions to just 20 -- I don't mean to say just, because a lot of people think, 20 weeks, that's halfway there -- but to 20 weeks. Whereas right now most of the states say 24 weeks or after, so it's a four-week -- you know moving the date back four weeks, and to tighten restrictions on clinics. Why was the Planned Parenthood, NARAL Pro-Choice America crowd so upset?

KIRSTEN POWERS: Well, they opposed this in every state. Basically, what Texas is trying to do is exactly what happened in Pennsylvania after the Gosnell tragedy in terms of, not so much in the moving the date, but all of the stuff of making them into ambulatory service centers, saying that you have to have admitting privileges, because in the Gosnell case they actually found that -- independent investigation found -- that probably one of the women who died wouldn't have died had they had met some of these requirements.

KELLY: Better facilities?

POWERS: Yeah, so Planned Parenthood, they opposed this across the country. This is an ongoing battle that goes on all over the country.

[...]

CROWLEY: Everything in this bill is completely reasonable from the 20-week mark to upgrading these facilities to demanding that doctors have hospital privileges within a 30-mile radius in case anything goes wrong. This is a direct response to the horrors that we saw in the Gosnell case. [Fox News, America Live, via Media Matters, 6/26/13]

Michelle Malkin: “Kermit Gosnell Is No Exception,” And HB 2 Protects Women From Another “Awful Kermit Gosnell House Of Horrors Situation.” Conservative columnist Michelle Malkin also invoked Gosnell to justify the passage of highly restrictive anti-choice laws. Appearing in a segment during the July 8, 2013, edition of Fox News’ America Live, Malkin asserted that HB 2 was designed to protect “women and unborn children” from another “awful Kermit Gosnell house of horrors situation.” When questioned by host Alisyn Camerota on the questionable rationale of basing new restrictions on the actions of “one homicidal maniac,” Malkin argued that it wasn't “just a case of picking the Gosnell case and then demonizing every abortion clinic” because “Kermit Gosnell is no exception”:

ALISYN CAMEROTA (HOST): Obviously an incredibly heated topic and you can see that played out in front of the state house today where abortion opponents and supporters are sort of having a showdown in front of the state house. What are we expecting?

MICHELLE MALKIN: Well, I think what we can expect is more of the same: rude, uncivil and unhinged behavior on the part of many of these pro-abortion supporters, and a lot of them -- as many Texas natives have been pointing out -- are coming from outside of the state. Supported by the national pro-abortion organizations NARAL and Planned Parenthood, along with a lot of these Hollywood celebrities who've taken to Twitter -- and my Twitter aggregation and curation site, Twitchy.com, has been monitoring them for the last week or so -- where they've ratcheted up vulgar rhetoric against peaceful, pro-life supporters and pro-life legislators and of course a staunchly pro-life governor, Rick Perry, who are really putting a test to these forces on the other side.

Do they really believe in ensuring that abortions are conducted in a safe manner? And I think that's what we have to remember, Alisyn, as these debates become more heated, not just in Texas but around the country where other state legislatures are trying to, in the wake of that awful Kermit Gosnell house of horrors situation, make sure that women and unborn children are protected.

CAMEROTA: But in terms of the Gosnell issue, Michelle, couldn't you argue that it's never a good idea to base policy on one homicidal maniac?

MALKIN: Well, I think the problem is that over the course of the last several decades is the pro-life forces who have tried to expose and report time and time again that Kermit Gosnell is no exception. That in fact, there are many barbaric practices that have gone whitewashed not just in Pennsylvania but in many states and of course including Texas itself. Very recently there were pro-life reporters and investigators, [inaudible] people who have worked in these abortion clinics who've been blowing the whistle on practices that have endangered women and obviously unborn children. So it's not just a case of picking the Gosnell case and then demonizing every abortion clinic, but as I said, will they abide by standards that will ensure safety? [Fox News, America Live, via Media Matters, 7/8/13]

Fox's Manny Alvarez: “Given The Severity” Of Gosnell's Case, Texas Should “Construct More Regulated” Abortion Facilities Under HB 2. In a June 29 article following the Supreme Court's decision to hear arguments about the constitutionality of HB 2, Fox News senior managing editor for health news Manny Alvarez claimed that Gosnell's crimes were “a reason for the state to address its needs and construct more regulated, safe facilities” through the Texas law:

Let me be clear, the regulations that were being placed on these clinics were mainly focused on enforcing safety and guidelines for a very delicate procedure. What the state of Texas is asking for is that these independent clinics performing these procedures be held to the same clinical standards as any other surgical center in the country.

[...]

Have we already forgotten what happened in Philadelphia with Dr. Kermit Gosnell who was arrested on Jan. 19 and charged with eight counts of murder? One count stemmed from the death of a woman who received an overdose of anesthetic at his clinic, while seven involved infants that officials say were delivered live and then killed. He was later convicted of killing three of the infants at his Women's Medical Society practice, and of involuntary manslaughter in the death of a patient. He is currently serving life in prison without parole.

[...]

Given the severity of that case and many others, I don't understand this Supreme Court ruling, I really do not. I believe that if you are going to perform any kind of medical procedure on any type of patient you must have medical standards that ensure quality medicine and focus on patient safety. Just because some clinics do not want to adhere to these rules does not mean our country's patients must suffer. The opposition argued that the new regulations would have forced a major wave of clinic closures, leaving some areas across the state without any centers. That should not have been a reason to block this rule, but rather a reason for the state to address its needs and construct more regulated, safe facilities. [FoxNews.com, 6/29/15]

FACT: HB 2 Wouldn’t Have Prevented Gosnell Or “Determined Wrongdoers” Like Him From Operating

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, Justice Stephen 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]