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June 27 — The U.S. Supreme Court June 27 held two provisions of a Texas abortion law unconstitutional in a sweeping victory for abortion rights advocates ( Whole Woman's Health v. Hellerstedt , 2016 BL 204435, U.S., No. 15-274, 6/27/16 ).
The court said both the admitting privileges and ambulatory surgical center requirements of a law known in Texas as H.B. 2 placed a substantial obstacle in the path of women seeking abortion in the state. The provisions thus constitute an undue burden on a woman's 14th Amendment right to have an abortion prior to fetal viability, the court said in an opinion written by Justice Stephen G. Breyer.
This is the first time the court has issued a decision in a case concerning abortion in nearly 10 years, and it “marks the most significant abortion-related ruling from the Court in more than two decades,” the Center for Reproductive Rights said in a June 27 press release. The CRR predicted the decision “will have a national impact,” especially “in states where similar laws threaten to shutter abortion clinics.”
Joining Breyer in the majority were Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and, interestingly, Anthony M. Kennedy. Court watchers generally viewed Kennedy as the swing vote. During oral argument, he didn't seem entirely convinced by arguments from opponents of the provisions, but also appeared unwilling to wholly accept the state's claims (42 HCDR, 3/3/16).
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented. Thomas, in a dissenting opinion, said the decision “exemplifies the Court's troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion is at issue.'”
Alito, writing separately, said the court shouldn't have reached the merits of the question presented because the issue had been decided in a prior case that wasn't before the court. Under the doctrine of res judicata, issues previously litigated between the same parties may not be re-litigated.
The ruling reversed a decision by the U.S. Court of Appeals for the Fifth Circuit, which had held both provisions valid (111 HCDR, 6/10/15). That decision would have left fewer than 10 clinics where abortions are performed open in Texas, the law's opponents said.
In addition to resolving the immediate conflict in Texas, the Supreme Court's decision should have an impact on several cases pending throughout the country. Federal courts in Alabama, Mississippi and Louisiana, for example, also have struggled with state laws requiring doctors who perform abortions to have admitting privileges at nearby hospitals.
Wisconsin's admitting privileges requirement was the subject of a petition for review considered by the court at its June 23 conference (66 HCDR, 4/6/16). The U.S. Court of Appeals for the Seventh Circuit held the Wisconsin law unconstitutional (227 HCDR, 11/25/15).
The Supreme Court's decision “sends a loud signal to state legislatures” that they may not adopt “sham” laws designed solely to prevent women's access to abortion, Jennifer Dalven, director of the American Civil Liberties Union's Reproductive Freedom Project in New York, told Bloomberg BNA June 27. The ACLU is representing providers in the Wisconsin and Alabama cases.
The court made clear in its opinion that there “must be actual evidence” that an abortion restriction protects women's health—and there wasn't any such evidence here, Dalven said. The court recognized that the Texas provisions were “designed solely to shut down clinics,” she said.
Still, Dalven said her organization has much work to do, as over 300 state laws restricting abortion have been adopted since the last election.
The decision was an “enormous win for women around the country,” Emily Martin, general counsel at the National Women's Law Center in Washington, told Bloomberg BNA June 27. The opinion reaffirms a woman's right to make her own decision about her health, Martin said.
The majority justices, Martin added, demonstrated that they are part of a “reality-based community” by looking at whether the Texas law actually harmed women's health by decreasing access to clinics where safe, legal abortions are performed.
Ilyse Hogue, president of NARAL Pro-Choice America, also praised the decision, saying 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.”
Attorney General Ken Paxton (R) called the decision “disappointing.”
“HB2 was an effort to improve minimum safety standards and ensure capable care for Texas women,” Paxton said in a prepared statement. “It’s exceedingly unfortunate that the court has taken the ability to protect women’s health out of the hands of Texas citizens and their duly-elected representatives.”
“The law’s requirements were commonsense protections that ensured the maximum amount of protection for women, who deserve to have their well-being treated by government as a higher priority than the bottom line of abortionists,” Alliance Defending Freedom Senior Counsel Steven H. Aden said. He added that any “abortion facilities that don’t meet basic health and safety standards are not facilities that anyone should want to remain open.” ADF, in Washington, filed a friend-of-the-court brief supporting Texas on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and others.
The National Right to Life Committee criticized the decision in a statement released to the media. “In the years following Roe v. Wade, the Court exhibited extreme hostility to regulation of abortion as a medical procedure,” Carol Tobias, NRL's president, said. “However, in its 1992 Casey decision, the Court turned a corner, rejecting the idea of it being `the country's ex officio medical board,'” she said, referring to Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
“Today,” the justices “reversed course and decided that they know better than representatives duly elected by the people of the United States,” Tobias said.
It's a “terrible decision,” Dr. Jane Orient, executive director of the Association of American Physicians and Surgeons Inc. in Tucson, Ariz., told Bloomberg BNA June 27. She called the opinion “a blow against the protection of women's health.”
There seems to be an “ideological belief that there is a constitutional right to an unsafe abortion,” Orient said. She added that there is “an unfounded belief” that abortion is a safe procedure. But there is very little evidence regarding the number of complications that arise because abortion providers aren't required to report them, she said. There should be some requirement that physicians who perform abortions be able to address complications beyond “calling 911,” she said.
AAPS filed a friend-of-the-court brief supporting Texas's argument that the provisions were needed to protect women's health. Orient said the AAPS will be considering its next steps.
The American College of Obstetricians and Gynecologists, on the other hand, applauded the ruling. Megan Christin, ACOG's director of media relations & communications, told Bloomberg BNA in an e-mail, “Today is a GREAT day for women’s health.”
The decision “will help to protect women’s access to abortion care in Texas and across the country,” Dr. Thomas M. Gellhaus, ACOG's president, said in a statement provided to Bloomberg BNA. “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”
Gellhaus added that “this is not the end of the battle when it comes to abortion access.” He noted that there still are laws “in dozens of states” that “impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more.”
“None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship,” Gellhaus said, adding that ACOG “will continue to oppose these laws and to promote safe access to legal abortion for our patients.”
At issue in the case were two of H.B. 2's provisions: a provision that required physicians who perform abortions to have admitting privileges at hospitals within 30 miles of where the abortions are performed; and a provision that required abortion clinics to meet the same standards as ambulatory surgical centers, even if the clinic didn't perform surgical abortions. Neither of the provisions offered “medical benefits sufficient to justify the burdens upon access each imposes,” the court said, adding that “each constitutes an undue burden on abortion access.”
In Roe v. Wade, 410 U.S. 113 (1973), the court upheld the right to abortion, but recognized that states have a legitimate interest in assuring that abortion, like other medical procedures, is performed under circumstances ensuring patient safety. In Casey, the court added that even a law that furthers a valid state interest isn't permissible if it “has the effect of placing a substantial obstacle in the path of a woman's choice.”
Moreover, unnecessary health regulations “that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right,” the Casey court said.
The Fifth Circuit had said the Texas law was valid because it didn't have the purpose or effect of placing a substantial obstacle in the path of women seeking abortions, and because it was reasonably related to a legitimate state interest. The appeals court's articulation of the relevant standard was “incorrect,” the Supreme Court said.
Casey requires courts to consider the burdens imposed by a law together with the benefits the law confers, the court said. It also requires courts to strictly review regulations affecting constitutionally protected liberty interests, not apply the less stringent rational basis test applicable to economic regulations.
The Fifth Circuit's “statement that legislatures, not courts, must resolve questions of medical uncertainty also is inconsistent with this Court's case law,” the court said. In evaluating abortion regulations, the Supreme Court has “placed considerable weight upon evidence and argument presented in judicial proceedings,” it said. It hasn't relied solely on the underlying legislative findings.
The evidentiary record here didn't show the admitting privileges provision was necessary to protect women's health, the opinion said. In fact, “Texas admitted” during oral argument that it knew of no instance in which the requirement would have helped a woman receive better treatment.
The surgical center requirement also didn't benefit patients and wasn't necessary, the court said after looking at the evidence in the record. The requirement wouldn't benefit patients with complications because complications “almost always arise only after the patient has left the facility,” the court said. There also was evidence that abortion is a far safer procedure than many others that take place outside hospitals in facilities that aren't similarly regulated, it said.
Ginsburg joined the majority opinion, but also wrote a separate concurring opinion in which she said that “Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,' … cannot survive judicial inspection.”
NWLC's Martin told Bloomberg BNA she was “pleased” to see Kennedy in the majority. He made some “concerning” comments during oral argument, but also questioned whether the Texas provisions would lead women to have more late-term abortions, as the regulations might impede medication or early-term abortions.
Kennedy supported the undue burden test in Casey, and it was interesting to see that he believes the protections recognized by the court in that case still have meaning, Martin said.
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The opinion is at http://src.bna.com/ghj.
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