An Undue Burden, Indeed

Note: This blog is a follow-up from a previous post discussing the potential effects of the Whole Women’s Health v. Hellerstedt case. That post can be found here.

Roughly four months after hearing oral arguments, the Supreme Court of the United States handed down its 5-3 decision in Whole Women’s Health v. Hellerstedt on June 27,, 2016. Justice Breyer wrote the majority opinion on behalf of himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Ginsburg also wrote a concurring opinion on the case. Justice Alito wrote the dissent on behalf of himself, Justice Thomas, and Chief Justice Roberts. Justice Thomas also wrote a separate dissenting opinion. This decision is the most significant victory for abortion rights in a generation.

Just one year ago, the United States Court of Appeals for the Fifth Circuit overturned the trial court and upheld the provisions of the Texas law saying it did not place an undue burden on the right to obtain an abortion. Had the Supreme Court’s decision resulted in a 4-4 ruling, that verdict would have remained in place. However, the majority of the Court said that the appeals court did not properly apply the undue burden standard.

The Court decided that two provisions of the Texas House Bill 2 were unconstitutional as interpreted in Planned Parenthood v. Casey (1992). The Texas bill was signed into law in July 2013 by then-governor, Rick Perry. The first of those provisions was a requirement that physicians performing surgical or medical abortions have active admitting privileges at a hospital within 30 miles. The second provision stated that clinics performing previability abortions meet extensive licensure standards applicable to ambulatory surgical centers (ASCs). The majority opinion reaffirmed the balancing test from Casey; the test calls for thorough judicial review of abortion-related legislation whose stated purpose is to protect women’s health but is allegedly unnecessary. When the legislation presents a substantial obstacle to women seeking abortions, it therefore imposes an undue burden on that right. Justice Breyer, writing for the majority, struck down provisions of the anti-choice law in Texas stating, “each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”

As of March 2016, Texas was among four other states with laws requiring abortion-providing physicians to have admitting privileges at nearby hospitals, and 21 states with the ambulatory surgery center standards. The Texas law was the only law before the Supreme Court, but these other states will likely have their laws overturned as well. The ruling is a significant step in restoring abortion access for women in Texas and keeping high-quality clinics open. Though the fight is far from over, this decision reaffirmed and strengthened constitutional protections for abortion rights.

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