In a decisive 5-3 decision, the Supreme Court struck down the strict abortion laws in Texas which have caused more than half of the state's abortion clinics to close. Texas had imposed onerous requirements on abortion clinics, requiring that doctors who perform abortions maintain admitting privileges at nearby hospitals and that all abortions be performed in hospital-like surgical centers. The majority (consisting of Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan) decided the restrictions create an unconstitutional burden on women seeking to end their pregnancies.
Writing the majority opinion, Justice Stephen Breyer made clear what an "undue burden" looks like:
[A]s the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; before H. B. 2's passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic.
"Common sense,” he writes, “also suggests that a physical facility that satisfies a certain physical demand will generally be unable to meet five times that demand without expanding physically or otherwise incurring significant costs."
He continues, "[p]atients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered, and adds that another "commonsense inference that the District Court made is that these effects would be harmful to, not supportive of, women's health." In her concurrence, Justice Ruth Bader Ginsburg agrees: "It is beyond rational belief that H. B. 2 could genuinely protect the health of women."
Justice's Clarence Thomas and Samuel Alito are particularly bitter in their dissents. Thomas opens and closes his dissent with quotes from the not-so-dearly departed Antonin Scalia. The majority has a "troubling tendency," he writes, quoting Scalia, "to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue." Alito sniffs that the "Court's patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter."
The last word should go to the winner. Amy Hagstrom Miller, founder and CEO of Whole Woman's Health said this in an emailed statement: "Every day Whole Woman's Health treats our patients with compassion, respect and dignity—and today the Supreme Court did the same. We're thrilled that today justice was served and our clinics stay open."
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