The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas must fall.
The Texas law at issue, HB2, represented a new anti-abortion strategy focusing on supply-side limitations on abortions. The provisions struck down today required doctors performing abortions to have admitting privileges at a nearby hospital, and abortion clinics to be built to the standards of ambulatory surgery centers. Building on a line of argument that had convinced the Supreme Court to uphold a ban on so-called partial birth abortions in 2007, the Texas legislature had publicly justified its policies as protections for women’s health.
But Justice Stephen Breyer, writing for a five-justice majority, dismissed these claims as pretexts masking the statute’s true purpose: sharply curtailing the availability of abortion throughout the state. Hospitals are already required to accept patients needing emergency services, so the admitting privileges requirement adds nothing for women’s health, but enables anti-abortion hospital boards to prevent doctors from providing abortions in their own facilities. And the building standards requirement struck the majority as overkill, given the percentage of women who receive medical abortions and thus require no surgery at all, as well as the existence of riskier procedures, such as colonoscopies and childbirth (!), which may be performed at facilities lacking such requirements. Combined with the uncontroverted findings of the district court that demonstrated the law’s on-the-ground impact since its enactment in 2013, these arguments led the majority to conclude that the law imposed an “undue burden” on women’s right to choose, in violation of the standard set forth in the Court’s last major ruling on abortion.
The impact of today’s ruling in Whole Women’s Health v. Hellerstedt cannot be overstated. Almost half the states have facility requirements comparable to Texas’, while 14 require providers to have some affiliation with a local hospital. But beyond the decision’s nullification of these laws lies a more prospective benefit: the shift in tone that signals the Court’s greater willingness to scrutinize claims offered in defense of restrictions on abortion. Part of what frustrated pro-choice activists about the replacement of Roe v. Wade‘s trimester framework with the undue burden standard from Planned Parenthood was the potential plasticity of the latter approach. Without anything concrete to anchor an understanding of what makes some burdens undue and others justifiable, the application of the standard depends on the predilections of the judge applying it. Breyer’s majority opinion and Justice Ruth Bader Ginsburg’s pointed concurring opinion (“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'”), with their deep dives into the social science findings supplied by both the petitioner and amicus curiae, send a clear message to the states that specious justifications for restrictions on abortion will be labeled and treated as such.
How total was today’s victory for the pro-choice movement? Even Roe opponents Chief Justice John Roberts and Justice Samuel Alito (who had voted while on the Third Circuit to uphold the spousal notification requirement struck down in Planned Parenthood v. Casey) could not bring themselves to defend the Texas law. Instead, they advocated returning the case to the lower courts to develop further the factual record on how the law was actually affecting women’s access to abortion. Given the facts relied upon in the majority opinion, it is unclear what further evidence these justices would have needed to see, but a remand would have bought some time and maybe enabled a junior version of Scalia to arrive at the Court to cast the decisive vote to uphold the statute. Only Justice Clarence Thomas was willing to issue a full-bodied defense of the statute.
It would be foolish to counsel the pro-choice community against complacency in the wake of today’s ruling, as no one has ever seriously advocated on behalf of complacency. But it does seem worthwhile to remind it that anti-abortion activists have been tactically resourceful and willing to play the long game. Moreover, their perspective commands legislative majorities in states containing a sizable majority of women of child-bearing age. So while two stringent restrictions were invalidated today, others will be forthcoming. But today the Supreme Court signaled that supporters of new regulations will be facing an uphill battle.