The New Roe v Wade

In a 5-3 decision yesterday the United States Supreme Court affirmed the right of a woman to safe abortion. Whole Woman’s Health v. Hellerstedt (pdf) may well be the most significant ruling since Roe v Wade in 1973.

Writing for a 5-3 majority, Justice Stephen Breyer said the two Texas laws at issue in the case are unconstitutional.

“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” he wrote. “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.” [..]

In deciding the Whole Woman’s Health case, the Supreme Court zeroed in on whether the two contested laws amounted to an “undue burden“ on a woman’s constitutional choice to obtain an abortion — the legal test governing abortion restrictions but one that has failed to dissuade state legislatures, particularly in the South, from enacting end-run measures around it.

Breyer’s majority opinion — for which he was joined by Ginsburg and Justices Anthony Kennedy, Sonia Sotomayor and Elena Kagan — reaffirmed this constitutional standard, including the principle that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” to an abortion.

As to the admitting privileges provision, Breyer said there was “nothing” in the record of the case to show that the requirement advanced the interest of protecting women’s health, and chided Texas for admitting during oral arguments that it couldn’t find “a single instance” of it even helping “one woman obtain better treatment.”

“In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts,” Breyer wrote.

In a single paragraph in her majority opinion (pdf) and er unique turn of phrase, Justice Ruth Bader Ginsburg let it be known that these laws that restrict access to abortions under the false premise of protecting women’s health would not survive judicial inspection.

Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting privileges requirements. See ante, at 31; Planned Parenthood of Wis., 806 F. 3d, at 21–922. See also Brief for Social Science Researchers 9–11 (comparing statistics on risks for abortion with tonsillectomy, colonoscopy, and in-office dental surgery); Brief for American Civil Liberties Union et al. as Amici Curiae 7 (all District Courts to consider admitting privileges requirements found abortion “is at least as safe as other medical procedures routinely performed in outpatient settings”). Given those realities, it is beyond rational belief that H.B. could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.” Planned Parenthood of Wis., 806 F. 3d, at 910. When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.

Justice Ginsburg’s use of the French phrase, faute de mieux, meaning “for want of something better,” sent people streaming to the internet for its meaning. Nice.

This ruing does not stop at the Texas borders, the justices quietly rejected review of appeals of similar laws by Wisconsin and Mississippi leaving the lower court rulings that overturned them in place.

With Tuesday’s move, the Supreme Court effectively shut down these laws in Wisconsin and Mississippi. In both cases, the laws had been previously invalidated or blocked by separate appeals courts.

In Mississippi, in particular, the admitting-privileges statute had threatened to shutter the state’s lone abortion clinic.

The task will now fall to lower courts to sort out these laws and there are seven states at the top of that list.

Six of those states — Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin — have laws being challenged in courts that require abortion doctors to have admitting privileges at local hospitals. The Supreme Court ruled 5-3 on Monday that the Texas version of that law is unconstitutional because the requirement is medically unnecessary and “places a substantial obstacle in the path of women seeking a pre-viability abortion.”

Tennessee also has three anti-abortion laws being litigated in the courts, and those cases were put on hold pending the outcome of the Supreme Court case. At least two of those laws — the admitting privileges requirement and a stipulation that most abortion clinics be turned into ambulatory surgical centers, or mini-hospitals — are likely to fall as a result of Monday’s ruling. [..]

Four more states — Michigan, Missouri, Pennsylvania, and Virginia — have clinic regulations similar to the ones struck down in Texas, although those states haven’t yet been challenged in court. Missouri, North Dakota, and Utah also have admitting privileges-requirements that wouldn’t likely withstand a future legal challenge.

This is a definitive win for women’s health and a long time coming.