By a 5-3 margin, the U.S. Supreme Court has thrown out a Texas law that tried to add so many unnecessary and expensive regulations on abortion clinics that they would be forced to close their doors, thus craftily undermining a woman’s right to choose. The law was dishonest to its core, as were its advocates, and in an opinion written by Justice Stephen Breyer, the court was clear in calling out that dishonesty:
“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”
Legally speaking, there should have been no mystery or doubt about the outcome of the case. Previous Supreme Court decisions had made it clear that government could not impose undue burdens on a woman’s right to choose, and the facts of the Texas case made it clear that adding undue burdens was exactly what the state Legislature and Gov. Rick Perry had attempted to achieve.
Already, the law has forced the closure of almost half the abortion clinics in the state, a fact that the law’s proponents have openly celebrated. Had the law been allowed to take full effect, the number of clinics serving Texas women would have dropped from 40 to seven or perhaps eight, leaving hundreds of thousands of Texas women with no clinic within a hundred miles.
As Breyer noted, Texas offered no health-based evidence that the provisions of the new law were necessary. To the contrary, unchallenged statistics prove that abortion continues to be a much safer procedure than many other clinic-based procedures allowed under Texas law. In fact, the strong safety record of abortion providers was cynically used against them by drafters of the law.
Under one major provision of the law, doctors who perform abortions must have admitting rights to a hospital within 30 miles of their clinic, even though post-abortion complications very rarely require such hospitalization. But here’s where the law’s cynicism really kicks in:
Hospital admission rights are often granted only to those doctors who refer a minimum number of patients to their facility. If you don’t refer enough patients, you don’t keep your right to admit patients. And as Breyer noted, using an example out of El Paso, that creates a neat little Catch-22:
“During the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital,” according to the testimony of an El Paso hospital executive in lower-court proceedings. And since abortion providers never admitted patients to the hospital, they thus would be unable maintain their admitting hospital privileges, and would thus be denied the legal right to perform abortions.
That’s ingenious, in an extremely underhanded way. Thanks to a precarious court majority, it is also — for the time being, at least — unconstitutional.