Abortion Jurisprudence Changes After Supreme Court Decision in Texas Case

Last week a divided Supreme Court ruled against Texas in the most significant abortion case since the early 1990’s.  After months of deliberation, the majority ruled that Texas legislatures over-stepped their constitutional limitations by passing a law which required abortion doctors to have admitting privileges in hospitals and forced abortion clinics to meet heightened standards of surgical care.  In the wake of the historic ruling, abortion rights advocates have promised to challenge more state laws which arguably violate the newly clarified constitutional standards.

Texas Abortion Law Tests Undue Burden Standard

Justice Anthony Kennedy joined the Supreme Court’s liberal bloc in a 5 – 3 decision which found the Texas restrictions on abortion doctors and clinics presented an undue burden on women in violation of the constitutional standard set in the 1992 case of Planned Parenthood v Casey.  Since the Casey decision 25 years ago, federal courts and state legislatures have danced around the definition of undue burden, leaving the standard for legal restrictions on abortion largely unclear.  In recent years several states, most notably Texas, have tested the limits of undue burden on abortion by passing increasingly restrictive legislation under the guise of heightened medical safety and licensing requirements.

Whiles states are permitted to regulate abortion, the Casey undue burden standard prohibits legislation which is designed to make it overly difficult for women to have an abortion.  Like many legal standards, the Casey undue burden left significant room for disagreement and interpretation by state legislators, but opponents to the Texas abortion legislation have argued that despite the gray area surrounding the undue burden standard, the Texas legislature exceeded its constitutional authority by using capacity to supervise hospitals and clinics as a means to discourage and limit the number of legal abortions performed in the state.  Justices Stephen Breyer, Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan, and Anthony Kennedy agreed that Texas had gone too far, and issued a definitive abortion opinion which will clarify the rules of state abortion restrictions.

Supreme Court Strikes Texas Abortion Law

Justice Breyer’s opinion in Whole Women’s Health v Hellerstedt not only struck down Texas’s abortion restrictions, but set the tone for future judicial review of abortion legislation.  According to Breyer, judges are to review facts and evidence which speak to both the benefits of proposed abortion legislation and its potential, or real, impact on women who seek abortion procedures.  Further, this factual review is to be conducted with a heightened standard of scrutiny that places a burden on states to demonstrate that abortion legislation is constitutional. While Breyer did not go so far as to confer the strict scrutiny title on abortion rights, his required heightened review of abortion legislation suggests that states will need to provide significant evidence of the medical necessity for any law which limits access to abortions.

After clarifying the required standard of review for abortion legislation, Justice Breyer’s majority opinion set to work dismantling the Texas law for its attempt to restrict abortions by increased medical standards.  After reviewing all the available evidence, much of which suggested a significant drop in Texas abortions following the passage of the controversial law, Justice Breyer and the rest of the majority determined that the Texas legislation did not have sufficient medical reason to justify the impact it had on access to abortion facilities. 

Justice Breyer struck down the Texas abortion law by concluding, “The surgical center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” With the undue burden standard clarified, and an example of an unconstitutional law dissected, the Whole Women’s Health ruling promises to shape the landscape of abortion jurisprudence, beginning with several other pieces of state legislation already drawing the ire of women’s rights advocates.

Texas Abortion Decision Opens Doors for Future Challenges

In the days after the Whole Women’s Health decision, the legal fallout across the country has already been noteworthy.  Doctors and clinics in Louisiana filed a lawsuit against the state for a series of restrictions which require women to wait 72 hours and receive ultrasounds before performing abortions, while a federal judge in Florida recently struck down a state law which places restrictions on abortion clinics.  Planned Parenthood, which saw half of its clinics close after the passage of Texas’s law, has promised to file lawsuits in Arizona, Florida, Michigan, Missouri, Pennsylvania, Tennessee, Texas, and Virginia over other abortion provisions which the organization argues are “unjust, dangerous, and unconstitutional.” 

Texas officials and pro-life advocates have promised to continue to push the boundaries of the newly clarified undue burden test with more legislation which is committed to persevering women’s health and protecting life.  Despite the recent ruling, the clinics lost during Texas’s period of abortion restriction may be slow to re-open, meaning it could be months or even years before the state is operating at its full capacity.  Regardless of logistic challenges facing abortion rights advocates, the recent Supreme Court decision establishes abortion as a firmly protected right that is unlikely to falter baring drastic action from the federal government. 

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