The Supreme Court issued a sharp rebuke to Texas on Monday, ruling 5 to 3 that two regulations on abortion providers place an unconstitutional burden on women seeking to end their pregnancies. In short, Texas lost because the Court asked for evidence that the provisions in Texas House Bill 2—one requiring abortion providers to have admitting privileges at local hospitals, the other that all abortions, even those induced by pill, take place in expensive surgical centers—would actually improve the health and well-being of Texas women; the state came up empty-handed. The implications are remarkable: If courts have to consider medical evidence when weighing abortion restrictions, rather than simply deferring to claims made by state legislators, then the legal basis for a number of other anti-abortion laws purported to be health and safety measures looks dramatically weakened.
Writing for the majority, Justice Stephen Breyer ruled that neither the admitting-privileges nor surgical-center requirement “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Breyer noted that when asked during the oral argument for just “a single instance in which the [admitting privileges] requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.” As for the surgical-center rule, it is “inappropriate” for surgical abortion, which carries less risk than common outpatient procedures like colonoscopies and childbirth; and it “provides no benefit” if complications arise from a medical abortion—a procedure that amounts to taking two pills—because complications “almost always arise only after the patient has left the facility.”
At the same time, the Court found that both rules amount to “a substantial obstacle” to women seeking abortions. After the admitting-privileges provision went into affect in 2013, the number of clinics in Texas providing abortions dropped by almost half. Those closures, Breyer wrote, “meant fewer doctors, longer waiting times, and increased crowding.” If the surgical-center mandate had been enacted, fewer than 10 clinics would have been able to stay open to serve the 5.4 million women in Texas who are of reproductive age. While supporters of the regulations insisted that the remaining clinics could scale up their services to compensate for other clinic closures, it would have required them to increase capacity by a factor of five. “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 superfacilities,” Breyer wrote.
In a brief concurring opinion, Justice Ruth Bader Ginsburg tore into Texas’ claim that regulations were meant to protect women’s health. Instead, she argued, they may actually endanger women by forcing them to seek out unsafe alternatives to licensed providers. Ginsburg noted that childbirth and many other medical procedures that are more dangerous than abortion do not face similar regulatory hurdles. “Given those realities, it is beyond rational belief that HB2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions,’” she wrote, quoting a ruling against similar abortion restrictions in Wisconsin. “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,” she wrote.