The U.S. Supreme Court struck down June 27 a state legislature’s effort to hold abortion providers responsible for the protection of women who use their services.
In a 5-3 opinion, the high court ruled portions of a Texas law that regulate abortion doctors and clinics constitute an “undue burden” on a woman’s right to abort her child and are therefore unconstitutional. The high court’s reversal of the Fifth Circuit Court of Appeals in New Orleans invalidated a requirement an abortion clinic must meet the health and safety standards of other walk-in surgical centers. It also ified a section mandating an abortion doctor must have admitting privileges at a nearby hospital in case a woman needs emergency admission.
The decision leaves uncertain the future of similar abortion provider regulations in nearly half of the states.
Pro-life advocates expressed deep disappointment with the opinion.
The ruling “stands on the wrong side of justice, the wrong side of human dignity, and the wrong side of the gospel,” said Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).
The opinion “essentially leaves the abortion industry unregulated in a kind of Wild West, laissez faire sort of situation … that we wouldn’t allow for any other industry,” Moore said. “Keeping abortion providers accountable should not be a political wedge issue.”
Jeanne Mancini, president of the March for Life, said, “Being pro-life means wanting what is best for women and babies. Because of the decision today, beauty parlors, veterinarian clinics and public pools will be held to higher sanitary and health standards than abortion clinics.
“This is not pro-woman,” she said in a written statement. “Women and babies are the real losers of today’s decision.”
Twenty-two states have enacted laws that require abortion doctors to have admitting privileges and/or transfer agreements with hospitals, according to the National Right to Life Committee. The number of states that have requirements for abortion clinics similar to those of ambulatory surgical centers is also 22, the Guttmacher Institute has reported.
Steven Aden, senior counsel for the pro-life Alliance Defending Freedom, said the defense of such laws would be fought on a case-by-case basis.
“Each case has its own facts. The facts in this case were fairly complicated,” Aden told reporters in a news conference call. “Each case will stand or fall on its own facts, but the bottom line is that the cases where the states can establish that this is done for the purpose of protecting women and there remains what the other side calls ‘access for abortion,’ we’ll succeed.”
Associate Justice Ruth Bader Ginsburg provided an ominous message regarding state regulations in an opinion concurring with the court’s decision. She said laws such as the Texas measure that target abortion providers and do not protect women’s health “cannot survive judicial inspection.”
Associate Justice Anthony Kennedy, often a swing vote in divisive cases, joined the court’s liberal bloc – Associate Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ginsburg – in the majority opinion. Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito dissented.
Had the justices split 4-4, the Fifth Circuit ruling would have been upheld in its jurisdiction, but it would not have established a precedent or been controlling in the rest of the states. The Fifth Circuit consists of Louisiana, Mississippi and Texas. The court has only eight justices because of the February death of Associate Justice Antonin Scalia.
In its past abortion decision-making, the high court has permitted states to regulate aspects of abortion practice to protect the lives and health of women. The standard provided by the justices in determining whether a restriction is constitutional is whether a law is an “undue burden” on a woman seeking an abortion. The justices adopted that test in their 1992 Planned Parenthood v. Casey opinion.
In the majority opinion, Breyer said neither of the Texas 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 U.S. Constitution, Breyer wrote.
Carol Tobias, president of the National Right to Life Committee, said the high court appeared to return to its pre-Casey days in its latest abortion ruling.
After its 1973 decision legalizing abortion, the court “exhibited extreme hostility to regulation of abortion as a medical procedure,” Tobias said in a written release. “However, in its 1992 Casey decision, the Court turned a corner, rejecting the idea of it being ‘the country’s ex officio medical board.’ Today, they reversed course and decided that they know better than representatives duly elected by the people of the United States.”
Abortion-rights supporters applauded the ruling.
Ilyse Hogue, president of NARAL Pro-Choice America, described it as “a great day for women, for our commitment to our Constitution, and for the values of freedom and dignity that all Americans hold dear. The Supreme Court has powerfully reaffirmed a woman’s constitutional right to make her own decisions about her health, family and future, no matter her zip code.”
After Texas enacted the law in 2013, the number of abortion clinics in the state dropped from about 40 to about 20. It was expected the number would fall to fewer than 10 had the high court upheld the law, which required an abortion doctor to have admitting privileges at a hospital within 30 miles.
Breyer wrote, “[I]n 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.”
Hogue said the high court’s decision will permit “the remaining clinics in Texas to keep their doors open, and it paves the way for new clinics to open and meet the needs of the millions of women in underserved areas of Texas.”
In his dissent, Thomas said the court’s opinion “perpetuates the Court’s habit of applying different rules to different constitutional rights – especially the putative right to abortion.”
“Whatever scrutiny the majority applies to Texas’ law, it bears little resemblance to the undue-burden test the Court articulated in [Casey] and its successors,” Thomas wrote. “Instead, the majority eviscerates important features of that test to return to a regime like the one that Casey repudiated.”
Supporters of the Texas legislation frequently cited the trial of Philadelphia abortion doctor Kermit Gosnell in advocating for the bill in 2013. In mid-May of that year, a jury convicted Gosnell of the first-degree murder of three born-alive babies, as well as 21 counts of violating a state ban on abortions after 24 weeks of pregnancy. Gosnell, 72, received three consecutive life sentences without parole for the murder convictions. State officials found unsafe and horribly unsanitary conditions in his clinic.
In his opinion, Breyer acknowledged Gosnell’s behavior “was terribly wrong” but said “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.”
Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, said, “We have documented page after page of incidents of abuse, negligence and brutality [in abortion clinics] since 2008. This decision means the filth and exploitation will continue unchecked.”
Moore said, “This ruling is further proof how much more work the pro-life movement has to do in the cause of life and human dignity.”
The ERLC and the Southern Baptists of Texas Convention joined four other groups in a friend-of-the-court brief that urged the justices to affirm the Texas law. The Christian Life Commission of the Missouri Baptist Convention signed onto another brief in support of the requirements.