WASHINGTON, D.C.—In a 5-3 decision June 27, the U.S. Supreme Court ruled as unconstitutional a 2013 Texas law regulating the operating standards of abortion providers and the clinics they operate. The decision not only overturns a lower court ruling upholding the law but puts into jeopardy similar laws across the nation.
The upbeat and almost revelatory mood of pro-life advocates in front of the Supreme Court turned on a dime as the decision was released shortly after 10 a.m. ET. In a live stream posted on the Students for Life of America Facebook page, cheers broke out off-camera as pro-abortion advocates celebrated the court’s decision. The ruling overturns requirements that abortion clinics maintain specific operating standards and their doctors have admitting privileges at nearby hospitals.
“This is not something to celebrate,” Kristan Hawkins, president of Students for Life told the crowd.
The decision nullifies two of the four parts of House Bill 2 drafted and passed in 2013 in the midst of clashing demonstrations at the Texas State Capitol by abortion activists vehemently opposing the bill and pro-life advocates pressing for its passage. The two standing regulations prohibit abortions after 20 weeks of conception and require that abortion inducing medications be administered per manufacturers’ instructions. Under scrutiny in case—Whole Women’s Health v. Hellerstedt—were requirements that physicians providing abortions also have admitting privileges at a hospital within a 30-mile radius of the abortion facility and that abortion clinics meet ambulatory surgical standards of care.
The revocation of Texas admitting privileges and ASC standards puts into peril similar laws in other states. A close reading of the court’s rationale would determine if similar laws are equally undermined, Denise Burke, vice president of Legal Affairs, Americans United for Life told the TEXAN.
In Texas, approximately 16 abortion clinics were still in operation pending the outcome of WWH v. Hellerstedt. How many clinics will re-open since being shuttered in 2014 is unknown.
Writing the majority opinion, Justice Stephen Breyer cited the court’s 1992 Planned Parenthood v. Casey decision and its ambiguous “undue burden” test. In his opinion, he wrote, “We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access.”
Justice Clarence Thomas wrote in his dissenting opinion the majority ruling “radically” rewrote the undue burden test, which had affirmed states’ rights to regulate abortion providers and their clinics. He said the decision employed far greater scrutiny of abortion clinic regulations than the Casey precedent allowed.
“These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny,” Thomas wrote.
Additionally, Thomas argued, the scrutiny is selective. Noting last week’s Fisher v. The University of Texas decision allowing public universities to consider a potential student’s race in admission standards, Thomas wrote, “This term, it is easier for a state to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same state to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the state apparently needs to show to survive strict scrutiny is a list of aspirational educational goals … and a ‘reasoned, principled explanation’ for why it is pursuing them.”
Citing two particular objections Justice Samuel Alito was equally critical of the majority’s decision. First the majority refused to consider the bill’s severability clause that should have saved portions of the challenged regulations. Secondly, the court should not have agreed to hear the admitting privileges challenge since that provision had already been tried and lost in an earlier lawsuit by Planned Parenthood. That, Alito said, should have ended the legal challenge of that provision of the law.
“The Court’s patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter,” Alito wrote.
The courts’ ruling puts into question a state’s authority to regulate abortion providers as affirmed in Casey. Texas State Representative Jodi Laubenberg, who authored HB 2, told the TEXAN there are no plans as yet to address the courts undermining of state regulative authority. It would take a constitutional amendment to undo what was done today, she said.
“This decision is bad news for women and a sad day for our nation,” she said in a prepared statement following the decision. “Women deserve the same standard of care at abortion clinics as they would receive at a medical facility. Obviously the politics of abortion supersedes the health and safety for women.”
As abortion advocates railed against HB 2 regulations the past three years, Planned Parenthood—the nation’s largest abortion provider and recipient of almost $500 million in tax-payer funding—opened a new HB 2-compliant abortion mega-center in San Antonio in direct competition with WWH v Hellerstedt lead plaintiff Amy Hagstrom-Miller. Opening the new abortion facility in San Antonio instead of the Rio Grande Valley, where abortionists claimed the need for a facility was greatest, indicated the fight was not about abortion rights but abortion revenues.
“The abortion clinics are about money. They go where the population is,” Laubenberg told the TEXAN.
Clarke Forsythe, acting president of Americans United for Life, said the high court decision contravenes explicit precedent allowing states to regulate the abortion industry within their borders. In a prepared statement, Forsythe wrote, “In striking down these commonsense requirements, the Supreme Court has essentially accepted the abortion industry’s argument that it should be allowed to keep its profits high and patient care standards low.”
In his dissent, Alito said he did not dispute that HB 2 was responsible for the closure of some Texas abortion clinics. But he noted the law was drafted in the wake of the conviction of Pennsylvania abortionist Kermit Gosnell for the murder of three infants born alive and the manslaughter of a woman seeking an abortion in his unregulated clinic.
“If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, HB 2 was clearly intended to put them out of business,” Alito said.
Pro-life advocates, many of whom were young adults, rallied near the Supreme Court building and declared their determination to press on despite the huge legal setback.
Laubenberg and other Christians recognized the work of promoting a culture of life will not take place in the court but in the public square.
“This morning I was praying about this,” Laubenberg said. “I said, ‘Lord, what is this a reflection of?’”
Answering her own question, the representative said a self-centered society has wrought the decision.
“This is part of it – disposing of babies,” she said.
In his response to the ruling, Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, wrote, “The Supreme Court today has taken a stand on the wrong side of justice, the wrong side of human dignity, and the wrong side of the gospel. The church must stand ready to receive more refugees from the sexual revolution’s broken promises and shattered hopes. For them, we have a better word than any court could give.”