In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by Kennedy and the Court’s other Democratic nominees, the Court forcefully acknowledged this reality. “The surgical-center requirement also 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,” concluded the majority.
Breyer’s argument that the Texas statute constituted an “undue burden” is straightforward and unanswerable. First, the regulations were not meaningfully related to protecting the health of women. All of the evidence suggests that abortion was already a very safe procedure in Texas, and the state also provided no evidence that these regulations would meaningfully improve safety. Texas, as the majority observed, could literally not name a single case in which the admitting privileges requirement would have allowed a woman to attain better post-surgical care. The health justifications offered by Texas, in other words, were obvious shams, and the Court refused to pretend otherwise.
The other half of the equation — whether the statute made it substantially more difficult for women to obtain abortions — was equally easier to answer. Eight of the state’s abortion clinics closed in the months between the law’s passage and its effective date of application, and 11 more closed the day the law took effect. Making women drive very long distances to obtain abortions is obviously a very substantial burden, and it was one that Texan women outside of a few urban centers would face.
Indeed, if evaluated as a health regulation, the Texas law is massively counterproductive. As Justice Ruth Bader Ginsburg observed in her brief concurrence, “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners… at great risk to their health and safety.” If Texas wanted to protect the health of women in the state, it would want to ensure that women have easy access to licensed abortion clinics, rather than pushing them to the unregulated black market.
If a law that makes it much more difficult for women to obtain an abortion and does not have any serious health justification does not constitute an “undue burden,” then the phrase has no meaning. In striking down the offending provisions of HB2, the Court acknowledged this basic reality.
Another striking indication of how specious Texas’s justifications for its law were is how little of the 60 pages of the dissenting opinions, written by Justices Clarence Thomas and Samuel Alito, actually defend the law as not constituting an “undue burden.” Rather, both Alito and Thomas focused on technical, jurisdictional arguments that would have prevented the Court from hearing the case.
For anyone familiar with Alito’s body of work, this shouldn’t be a surprise.
The thing is that presidential and Senate elections matter a lot.
I’ll have another piece coming out explaining Kennedy’s evolution on the issue. I’m glad that for the second time in the last 7 days he can’t go along with where the Republican Party now is.