In a Major Victory for Abortion Rights, the Supreme Court Declares Texas' HB2 Unconstitutional 

On Monday, in a five to three decision, the Supreme Court reversed the Fifth Circuit court’s decision in Whole Woman’s Health vs. Hellerstedt. The Court ruled that Texas’s HB2, an omnibus abortion bill that restricted access to reproductive services, is unconstitutional. Justice Breyer wrote the majority opinion.

Thank fucking god.

Hellerstedt was a challenge to the 2013 Texas law HB2. The omnibus bill—passed despite Wendy Davis’ filibuster and protests by Texas women—imposed two primary requirements on abortion clinics. First, the law requires that clinics meet the same standards as an “ambulatory surgical center,” a medical facility that performs low-risk surgery. Second, that any physician performing abortions must have “admitting privileges” at a hospital within 30 miles of the clinic.

Today, the Supreme Court ruled that the “ambulatory surgical center” requirements were unconstitutional. They also ruled that admitting privileges violated the Constitution. In short, today’s ruling is a major victory for women and abortion rights in this country. Given the current state of abortion laws, this seems like a minor miracle.

Texas’ law, known as a TRAP law (Targeted Regulation of an Abortion Provider), was enacted with the sole purpose of regulating abortion clinics out of existence. And HB2 was incredibly successful. Nearly all of Texas’ freestanding abortion clinics have closed; before HB2 went into effect Texas had 41 clinics, it now has 18. In short, HB2 has been incredibly effective as doing what it set out to do: closing abortion clinics.

Yet Texas has insisted from the outset that HB2 protects women’s health, adding extra protections for vulnerable women in the era of Kermit Gosnell, something the state believes that it is uniquely empowered to do.

The plaintiffs, Whole Woman’s Health, a chain of Texas-based abortion clinics, argued that the regulations laid out in HB2 are medically unnecessary as abortion clinics and ambulatory surgical centers (ASC) have little in common. Abortion is safe and has little resemblance to the minor surgeries performed at ASCs. Indeed, the procedure has been performed safely at freestanding clinics for decades. Further, they argue that there’s no need for abortion doctors to have admitting privileges (a process that is not coincidentally mired in politics and religion) since providers can send the rare patient in need of additional care to an emergency room.

In 2014, the case found its way to the Fifth Circuit. Whole Woman’s argued that HB2’s restriction created a “substantial obstacle” on a woman’s right to choose. In Planned Parenthood vs. Casey (1992), the court upheld the right to an abortion while simultaneously laying out a standard by which to measure regulations placed on abortion. Essentially Casey found that the state can regulate abortion, but cannot apply an “undue burden” on the procedure. That phrase, “undue burden” is what was at stake in Hellerstedt.

Whole Woman’s argued that HB2 violated Casey by producing “substantial obstacle.” While a lower appeals court agreed with this position, the Fifth Circuit did not.

Indeed, the Fifth Circuit authorized Texas to enforce the requirements against all Texas clinics with the exception of a McAllen clinic operated by Whole Woman’s Health. The Fifth Circuit allowed the McAllen clinic to remain open but imposed a series of regulations. The court decided that clinic would have to meet the staffing requirements of an ambulatory surgical center. Further, that clinic would only be allowed to service patients who lived in the four counties of the Lower Rio Grande Valley. According to the Center for Reproductive Rights, the ruling forced the McAllen clinic to turn away women from nearby counties, “even though the next closest abortion provider would be in San Antonio, well over 200 miles away.” Lastly, it permitted the clinic to employ a single physician.

The Fifth Circuit essentially decided that HB2 did not create a “substantial obstacle,” except at the McAllen clinic which it still subjected to iterations of HB2. The Fifth Circuit took an interesting route to their conclusion, writing:

“It is not the courts’ duty to second guess legislative fact-finding, improve on, or cleanse the legislative process by allowing relitigation of the facts that led to the passage of a law. . . . Because the determination does not lend itself to an evidentiary inquiry in court, the state is not required to prove that the objective of the law would be fulfilled.”

The Atlantic described the decision as “breathtaking,” since it effectively argues that, “court is obliged to believe anything the state says; if Texas says the unnecessary is necessary, then that’s it.”

In response to the Fifth Circuit’s decision, Whole Woman’s asked the Supreme Court to consider two issues. First, whether or not the Fifth Circuit erred by misinterpreting Casey by “refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health.”

Second:

“Whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.”

The plaintiffs also ideologically pushed back on the notion that the state itself was charged with “protecting” women, a concept, that as Emily Bazelon noted, has judicial roots dating to the early twentieth century. A friend-of-the-court brief filed by the American College of Obstetricians and Gynecologists and the American Medical Association states that “abortion is one of the safest medical procedures performed in the United States,” and further argued that HB2’s “protection” is far from the actual definition of the word. Rather, most major medical groups agree that the TRAP bill endangers women’s healthcare by either delaying or outright blocking the procedure. This is evidenced, perhaps, by the fact that, in Texas, DIY abortion is on the rise.

The Supreme Court’s answer to those questions was essentially that the Fifth Circuit has misinterpreted Casey and that HB2 did meet the standard of an “undue burden.” From the opinion:

Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Consitution.

The state also took Texas to task and rejected the Fifth Circuit’s ruling that the state does not have to question the motives of legislation:

The State’s record evidence, in contrast, does not show how the new law advanced the State’s legitimate interest in protecting women’s health when compared to the prior law, which required providers to have a “working arrangement” with doctors who had admitting privileges.

SCOTUSblog notes that only Justice Thomas would have upheld HB2 outright, both Robert and Alito, who joined the dissent, would have “required greater analysis and findings.” In his dissenting opinion, Thomas wrote that the majority voted “at the behest of abortion clinics and doctors.”

But regardless of Thomas’ dissent, today’s ruling is a major affirmation of abortion rights in this country. In a statement, NARAL said:

“Today is 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.”

To be clear, this is the end of the current spate of TRAP laws meant to do little more than end access to safe and legal abortion. Numerous states, particularly in the South, including Oklahoma, South Carolina, Louisiana, and Florida will have to revisit their Texas-style abortion laws.