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Supreme Court strikes down contested HB 2 provisions

The Supreme Court on Monday struck down two contested provisions in Texas' omnibus antiabortion-rights law (HB 2), the New York Times reports (Liptak, New York Times, 6/27).


The case, Whole Woman's Health v. Hellerstedt, centered on two provisions of the law. One required abortion clinics in the state to meet the same building standards as ambulatory surgical centers, and the other required abortion providers to have admitting privileges at local hospitals.

The Center for Reproductive Rights (CRR), which represented the group of abortion providers challenging the law, argued that the restrictions are unconstitutional, create an undue burden for Texas women who live far away from the nearest clinic and do not promote the state's interest in improving health. If the court had ruled for the state, the number of clinics would have fallen to about 10, compared with about 40 before the law took effect.

In June 2015, the 5th U.S. Circuit Court of Appeals upheld the law's ambulatory surgical centers provision and admitting privileges requirements except in the case of one clinic, Whole Woman's Health in McAllen, Texas. Later that month, CRR asked the 5th Circuit to stay the decision while the clinics appealed to the Supreme Court. The 5th Circuit rejected the request. CRR then filed an emergency request with the Supreme Court to stay the lower court's ruling and allow the clinics to remain open pending appeal. The Supreme Court in late June 2015 temporarily blocked HB 2's ambulatory surgical center requirement.

The case centered on the meaning of the Supreme Court's ruling in Planned Parenthood v. Casey, which held that states cannot place an "undue burden" on abortion access. Under the Casey precedent, a law is unconstitutional "if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability."

During oral arguments, CRR attorney Stephanie Toti said the contested provisions violate precedent established in Casey, calling them "unnecessary health regulations that create substantial obstacles to abortion access." Separately, Texas Solicitor General Scott Keller claimed the contested provisions were aimed at improving clinic safety and protecting women's health (Women's Health Policy Report, 3/3).

Ruling details

In a 5-3 decision, the court held that both contested provisions violated the U.S. Constitution by imposing an undue burden on a woman seeking abortion care (New York Times, 6/27). According to the Washington Post, Justices Anthony Kennedy, Sonia Sotomayor and Elena Kagan joined Justice Stephen Breyer in the majority opinion. Justice Ruth Bader Ginsburg joined the majority, and wrote a concurring opinion. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented (Barnes, Washington Post, 6/27).

Breyer, writing for the majority, stated, "We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access [to abortion care] that each imposes. Each places a substantial obstacle in the path of women seeking [abortion care], each constitutes an undue burden on abortion access, and each violates the federal Constitution." Specifically, Breyer noted that the requirements violate the constitutional standard set forth in Casey (New York Times, 6/27).

Breyer noted that abortion care prior to the implementation of HB 2 was "extremely safe with particularly low rates of serious complications." According to Breyer, the contested provisions shut down many of the clinics in the state, which resulted in "fewer doctors, longer waiting times, and increased crowding" (Savage, Los Angeles Times, 6/27).

Breyer also explained how the 5th U.S. Circuit Court erred in upholding the law. He stated that courts are obligated to "consider the burdens a law imposes on abortion access together with the benefits that those laws confer." Breyer added that deference to state legislatures on "questions of medical uncertainty is also inconsistent with [the Supreme Court's] case law" (Hurley et. al, Reuters, 6/27).

According to the Post, Alito and Roberts in their dissent indicated that they would have remanded the lawsuit so that the lower courts could issue a narrower ruling allowing the law to remain in effect (Washington Post, 6/27).

Concurring opinion

In a concurring opinion, Ginsburg affirmed the majority decision and said the ruling aligns with precedent protecting a woman's right to abortion. "So long as this court adheres to Roe v. Wade and [Planned Parenthood v. Casey], targeted regulation of abortion providers laws like HB2 that do little or nothing for health but rather strew impediments to abortion cannot survive judicial inspection," she wrote (Washington Post, 6/27).

Ginsburg further stated that it "is beyond rational belief that (the Texas law) could genuinely protect the health of women and certain that the law would simply make it more difficult for them to obtain abortions." According to Ginsburg, shutting down licensed clinics could compel "women in desperate circumstances (to) resort to unlicensed rogue practitioners" (Los Angeles Times, 6/27).


The decision could affect similar abortion restrictions in other states, the Wall Street Journal reports (Bravin, Wall Street Journal, 6/27).

According to CRR, Texas is one of 10 states that have passed admitting privileges requirements. Aside from Texas, Missouri, North Dakota and Tennessee currently impose admitting privileges requirements, while similar restrictions in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin are on hold.

Relatedly, Michigan, Missouri, Pennsylvania and Virginia currently impose requirements that abortion clinics meeting the building standards of ambulatory surgical centers (Sherman, AP/Sacramento Bee, 6/27).

Abortion-rights supporters praise ruling

Amy Hagstrom Miller -- lead plaintiff in the case and owner of Whole Woman's Health -- praised the decision. "Every day Whole Woman's Health treats our patients with compassion, respect and dignity -- and today the Supreme Court did the same," she said, adding, "We're thrilled that today justice was served and our clinics stay open" (Wall Street Journal, 6/27).

Separately, CRR President and CEO Nancy Northup said, "Today women across the nation have had their constitutional rights vindicated. The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics" (Washington Post, 6/27). She added, "Without question, today's ruling is a game-changer in what has been an unrelenting assault on women's rights across the country ... This tremendous victory renews the promise of Roe vs. Wade for the next generation. We will not stop fighting until access is restored for all women in the U.S." (Los Angeles Times, 6/27).

Cecile Richards, president of Planned Parenthood Federation of America, also praised the ruling. "We are thrilled that these dangerous provisions have been struck down," she said, continuing, "This is a win for women. Every person must have the right to make their own personal decisions about abortion, and we will fight like hell to ensure they do" (Williams, NBC News, 6/27).