US Supreme Court Stops the Sham by Striking Down Texas Abortion Law

Deirdre Fulton Jun 27, 2016

Women's health advocates rejoiced on Monday as the U.S. Supreme Court overturned Texas' controversial abortion restrictions, saying they pose an unconstitutional burden.

Justice Anthony Kennedy sided with four liberal justices for a 5-3 decision (pdf) in WholeWoman's Health v. Hellerstedt, considered the biggest abortion case since Roe v. Wade. 

"I am beyond elated," said lead plaintiff Amy Hagstrom Miller, founder and CEO of the Whole Woman's Health network of providers. "Every day Whole Woman's Health treats our patients with compassion, respect and dignity—and with this historic decision, today the Supreme Court did the same. We're thrilled that justice was served and our clinics stay open."

She continued: "After years of fighting heartless, anti-abortion Texas politicians who would seemingly stop at nothing to push abortion out of reach, I want everyone to understand: you don't mess with Texas, you don't mess with Whole Woman’s Health, and you don't mess with this beautiful, powerful movement of people dedicated to reproductive health, rights, and justice."

The case concerned two provisions of a 2013 law known as HB2, one requiring all abortion providers to obtain local hospital admitting privileges and another mandating that every reproductive health care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center. Reproductive health advocates said the law would have forced all but a handful of abortion clinics in the state to close—and its burdensome requirements were already hindering access across the state.

Vicki Saporta, president and CEO of the National Abortion Federation (NAF), said that since the passage of HB2, her organization's hotline has been "flooded with calls from Texas women desperately trying to access the abortion care they need."

"Too many of those women," she said, "after hearing how far they would have to travel to access care, simply said 'I can’t get there.' Other women have made appointments, hopeful they could find someone to drive them, only to have to cancel at the last minute. We've even heard from women forced to spend the night in their car because they couldn't afford a hotel or another round-trip to the clinic. Hopefully, with this decision, new high-quality clinics will be able to open in Texas and throughout the U.S. and women will be able to access abortion care closer to home."

Under the banner "Stop the Sham," the plaintiffs had said all along that the HB2 restrictions were in fact aimed not at protecting women's health—as their anti-choice proponents claimed—but at closing down clinics.

In their ruling, the justices appeared to concur. "We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes," Justice Stephen Breyer wrote for the majority.

On the admitting privileges requirement, the court found "there was no significant health-related problem that the new law helped to cure."

The opinion continues:

We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting, the new law advanced Texas’ legitimate interest in protecting women’s health.

We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

Meanwhile, the justices point to medical evidence showing the surgical-center requirement "is not necessary" and would likely result in overcrowded facilities serving five times their usual number of patients:

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. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand…may find that quality of care declines.

"Today, women across the nation have had their constitutional rights vindicated," declared Nancy Northup, president and CEO of the Center for Reproductive Rights. "The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics."

But even as they celebrated, reproductive rights experts warned that the struggle continues.

"The fight to protect abortion access does not end today—this is just the first step in dismantling laws that make it harder for people to access the health care they need," saidHeather Busby, executive director of NARAL Pro-Choice Texas.

Indeed, American College of Obstetricians and Gynecologists president Thomas Gellhauswrote at Rewire ahead of Monday's ruling, "even if we are able to celebrate a favorable outcome in the case, the battle for reproductive health will continue in dozens of statesacross the country."

Similar Targeted Regulation of Abortion Providers, or TRAP, laws have been passed around the country, he said, "and in some cases, their implementation will depend on the outcome of Whole Woman's Health."

The ACLU, which said the effects of the decision will likely be felt around the country, noted that challenges to admitting privileges requirements similar to the Texas law are currently pending in federal courts in Alabama, Louisiana, Mississippi, Tennessee, and Wisconsin.

This article originally appeared in Common Dreams.

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