In its first major decision on abortion law in two decades, the Supreme Court ruled 5-3 on Monday that a pair of Texas’ abortion provisions were unconstitutional.
While the state argued that these laws would benefit women’s health, the court disagreed, with Justice Stephen Breyer writing in the majority opinion, “There was no significant health-related problem that the new law helped to cure.”
Here, Aziza Ahmed, professor in Northeastern University’s School of Law and a health law expert, discusses the case and what precedent this ruling will set for future abortion laws.
What was the state of Texas’ explanation for instituting this new law? And where did the Supreme Court find fault?
In Whole Women’s Health v. Hellerstedt, the court was being asked to consider the constitutionality of two provisions of Texas House Bill H.B.2. The first regulation mandated that a physician performing or inducing an abortion have admitting privileges at a hospital located no further than 30 miles from the abortion facility. The second regulation required that abortion facilities meet the minimum standards for ambulatory surgical centers.
Texas claimed these laws were better for women’s health. Abortion providers challenged this claim, arguing instead that the laws created an undue burden on a woman’s right to an abortion. Further, providers argued that these laws did not protect women’s health. To the contrary, they prevent women from accessing safe abortions by essentially forcing the closure of clinics.
The Supreme Court found the laws to be unconstitutional. The court relied on prior precedent including Casey v. Planned Parenthood, a 1992 decision stating that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion imposes an undue burden on the right.” The cases following the Casey decision have not reliably resulted in progressive decisions on abortion; however, the court turned a corner in Whole Women’s Health.
The court roundly criticized the claim that Texas enacted these laws to protect women’s health in pointing out that Texas could not provide a single example in which the admitting privileges requirement helped one woman obtain better treatment.
Are there any other state laws like the Texas one that could be overturned as well?
Many states have passed abortion laws that fall under the category of Targeted Regulation of Abortion Providers, or TRAP laws, which go beyond the two provisions challenged in Whole Women’s Health. They may mandate the width of corridors and doors in abortion clinics, the size of procedure rooms, and the distance from hospitals. TRAP laws have been one of the most effective tools of the anti-choice movement.
Several states have similar regulatory requirements as those struck down in Whole Women’s Health. According to the Guttmacher Institute, states including, but not limited to, Alabama, Mississippi, Utah, and Pennsylvania all have ambulatory surgical requirements. Like the Texas laws, many of these regulatory measures passed under the guise of protecting women’s health. Whole Women’s Health sends a clear signal that the regulation of abortion provision must actually protect women’s health—the regulations cannot be a cover for preventing access to abortion.
What precedent does this ruling set for the future of abortion laws?
This ruling is a major step forward and a long awaited victory for reproductive justice advocates and abortion providers. In finding that H.B.2 placed a substantial obstacle in the path of women seeking an abortion, thereby constituting an undue burden on abortion access, the decision undermines the false proposition that TRAP laws actually serve the function of bettering women’s health.
The precedent will strengthen the position of those advocates and providers not only challenging TRAP laws but also the myriad regulations created under the guise of protecting women that actually serve to scare women away from getting abortions and-or ensure logistical hurdles in attempting abortion access.
While advocates successfully challenged many of these laws in lower courts, many remain on the books and much work remains to be done. Following Whole Women’s Health, abortion advocates and practitioners stand on even stronger ground to argue that these restrictive laws be struck down because they are not designed to legitimately regulate healthcare—they exist to prevent access to abortion and have this effect.