The Supreme Court delivered a major victory for reproductive rights today in Whole Woman’s Health v. Hellerstedt, striking down two of Texas’ recent restrictions on abortion (these have been copied in other states, so the effect of the ruling is much larger than Texas): requiring abortion doctors to have admitting privileges at a nearby hospital, and requiring abortion facilities to meet ambulatory surgical center standards. The net effect would have been to radically curtail the availability of abortion to women in Texas, as the law would have closed most of the clinics in the state. As always, poor women who couldn't travel the sometimes extravagant distances needed would suffer the most (it was so bad that the appellate Court said that women in West Texas could just go to New Mexico, which has very permissive abortion laws. Apparently women's health isn't that important). The fig leaf with which the Texas legislature tried to cover these restrictions will be familiar to those who have been watching state legislatures on abortion: “women’s health.” In getting the case to the Supreme Court, the 5th Circuit basically announced that the Courts were bound by legislative findings of fact and then a rational basis review test. In an opinion by Justice Breyer (n.b. not Kennedy, who joined the majority, however), the Supreme Court invalidated both of those lines of argument in this case.
Pointing out the traditional fact-finding function of courts. Breyer’s opinion noted that the Texas legislature didn’t really advance facts to support its regulation, and that the district court found that the facts went the other way: abortions are much safer than other medical procedures not subject to similar regulations, and that adding the new requirements did not make them safer: a woman who needs to go to the hospital can do so, regardless of the admitting privileges (or not) of her abortion provider. Even more important, it would be very difficult for abortion providers to get admitting privileges, since hospitals often condition admitting privileges on how many admissions were required per year. Since abortion is so safe, doctors wouldn’t be sending enough patients over to enable them to get admitting privileges. In other words, the law’s own mechanism refuted the justification or it. Or, as Breyer put it: “In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit” and “The admitting-privileges requirement does not serve any relevant credentialing function.” (op slip, 25).
In the meantime, since the law would make it much, much harder for most women to access abortion providers, the law imposed an “undue burden” (the test outlined in 1992’s Planned Parenthood v. Casey as the standard of scrutiny applicable to abortion restrictions) on women seeking the service, without offering any benefit in exchange. Hence, “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 privileges), the new law advanced Texas’ legitimate interest in protecting women’s health” (op slip, 24). Fans of evidence and science will note that the Court cited both expert testimony and peer-reviewed articles in reaching this conclusion.
As for the ambulatory surgical center requirements, these are both onerous and expensive (pp. 28ff), and Breyer notes that there is no evidence that outcomes for abortion services would be improved by adding those requirements. Not only that,complications for medical abortions - those induced by mifepristone (a pill) occur after the patient has left the facility. In the meantime, the state managed to exempt a lot of facilities performing any number of procedures from these requirements, but of course no abortion facilities. A paragraph of Breyer’s analysis will give you the general picture of where he’s going:
“Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling, wall, and floor finishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity control can help reduce infection where doctors conduct procedures that penetrate the skin. But abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile.. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, provide any help to abortion patients, as abortion facilities do not use general anesthesia or deep sedation. Further, since the few instances in which serious complications do arise following an abortion almost always require hospitalization, not treatment at a surgical center, surgical-center standards will not help in those instances either” (op slip, 31, internal citations removed).
Texas admitted (!) that it didn’t really have any evidence that the requirement - which would close even more clinics because the upfitting would be very expensive, closing most of the clinics that survived the admitting-privileges requirement - wouldn’t force the remaining ones to operate at well-above capacity (placing an additional undue burden, beyond travel). Not only that, all the overcrowding would be worse for women’s health, so the law would do the opposite of its supposedly intended effect. Thus:
“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. Another commonsense inference that the District Court made is that these effects would be harmful to, not supportive of, women’s health.” (op slip 35-6, internal citations omitted).
Citing the “realities” in testimony, and in a short concurrence, Justice Ginsburg said that “it is beyond rational belief that H. B. 2 could genuinely protect the health of women” (op slip, 2). This is significant dicta. It’s non-binding, but it implies that Texas’ law wouldn’t pass even the minimal (“rational basis”) judicial scrutiny one applies to things like speed limits, much less the heightened scrutiny applied to cases involving fundamental rights. I haven’t read the dissents yet, but based on Breyer’s discussion of them, this is one of those cases where Texas threw up a little bit of false pseudo-science and quack experts to defend a pretext that (I agree with Ginsburg here) is completely impossible to square with what we know about the world. It was good to see actual evidence win, and it was good to see the Court affirm that district courts don’t have to rely on what legislatures cite as “evidence” when fundamental rights are at stake. Will this stop hostile state legislatures from passing obviously unconstitutional laws? Of course not - but it will make them easier to strike down, using traditional tools of expert testimony and scientific evidence. Oh - and notice this was a 5-3. The late Justice Scalia would not have changed the outcome.