Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.
Abortion rights advocates have insisted, since the beginning of the fight over targeted regulation of abortion providers (TRAP) laws, that despite anti-choice lawmakers’ claims to the contrary, the evidence proved these restrictions harmed rather than advanced patient safety. On Monday, the U.S. Supreme Court finally listened.
Monday’s decision in Whole Woman’s Health v. Hellerstedt—which struck as unconstitutional Texas’ requirements in HB 2 that all doctors performing abortions in the state have admitting privileges at a nearby hospital and that all clinics meet the same requirements as stand-alone surgical centers—is not just a win for advocates and patients in Texas. It produced an opinion that has the potential to turn back the seemingly endless wave of restrictions from the states and to reinforce abortion as a fundamental right.
First things first. Whole Woman’s Health is a data-heavy opinion, and there is probably no better justice to pen one than Justice Stephen Breyer. The man seems to live for statistical analysis. He may offer up rambling hypotheticals during oral arguments, but his written opinions are more often than not grounded in data.
Sex. Abortion. Parenthood. Power.
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The reason this matters is that both the conservatives on the Roberts Court and their supporters in the Fifth Circuit have tried their damnedest for years to sidestep piles and piles of facts. Such as the fact that in 2013, the year Gov. Rick Perry (R) signed HB 2 into law, the number of Texans who traveled out of state to have an abortion increased to 681, a jump Rewire reported as amounting to more than the previous four years combined. Conservatives also tried to explain away the fact that prior to the implementation of HB 2, there were 41 facilities providing abortion services in the state; by the end of 2013, 16 of those facilities had either stopped providing abortion services or closed altogether. And they tried to manipulate the legal standard governing how courts review abortion restrictions to do so. Justice Breyer, his liberal colleagues, and even noted abortion rights skeptic Justice Anthony Kennedy finally put a stop to all that nonsense. Here’s how.
When upholding the Texas abortion restrictions, the Fifth Circuit relied heavily on a line of reasoning in Gonzales v. Carhart, the 2007 Supreme Court case that upheld the so-called federal partial-birth abortion act. As part of that decision, the Court ruled that when there is a question of scientific or medical uncertainty, legislators could essentially pick a side they agree with and draft laws accordingly. We’ve all witnessed what happened next. Anti-choice lawmakers in the states went bananas concocting abortion restrictions with not much more than a hand-wave that those restrictions were grounded in science and designed to advance patient safety. The Fifth Circuit Court of Appeals took that ruling one step further in the fight over HB 2 and ruled that once legislators announce their justification for an abortion restriction, there was little, if anything, the federal courts could do to second-guess that reasoning.
Not so, the Court ruled Monday. “The statement [by the Fifth Circuit] that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law,” Breyer wrote. “Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings” holding that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
Justice Breyer put that last part in italics just to drive home that yes, when it comes to the fundamental right to abortion, the federal courts are not simply rubber stamps for state lawmakers.
With that point made clear, Breyer then laid out—basically in a listicle—the number of places the Fifth Circuit got its review of the data wrong as to the effect of admitting privileges on the availability of reproductive care. It’s an impressive list that goes on for pages and includes “[a] collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications including those complications requiring hospital admission—was less than one-quarter of 1%” as “[e]xpert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic.”
There’s more, but Breyer summed it up nicely: “In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.”
Moving on to those claims made by attorneys for the State of Texas that the ACS provisions in particular advanced patient safety, Justice Breyer dropped some more data bombs. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home,” Breyer wrote.
Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions.
How good does it feel to hear the Supreme Court call shenanigans on lawmakers who insist the best way to protect the health and safety of patients is by making comprehensive reproductive health care impossible to access? Probably as good as it feels to hear the Supreme Court shut down in the same opinion all the nonsense from abortion rights opponents claiming rogue provider Dr. Kermit Gosnell is proof positive that all abortion providers are dangerous predators that require the kind of regulation advanced in HB 2. “Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior,” Breyer wrote. “Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.”
Breyer went on: “Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.”
Immediately, Monday’s decision means that similar TRAP restrictions in other Fifth Circuit states like Louisiana are likely to be found unconstitutional. In states like Missouri or Kansas, it’s too soon to tell how the decision will affect those kinds of laws, but advocates are no doubt looking into that issue right now given the opening Monday’s decision creates.
And importantly, it makes it much more difficult for anti-abortion lawmakers to advance additional restrictions like “dismemberment bans” without being able to scientifically prove those laws actually advance patient care. These are laws that would effectively criminalize surgical abortions pre-viabilty, and are anti-abortion lawmakers’ latest attempts to cut off access to abortion while claiming to advance patient safety.
This is why Whole Woman’s Health v. Hellerstedt has the potential to reach far beyond TRAP laws in the fight for comprehensive reproductive health care. Finally, we’ve got a Supreme Court decision that demands facts over rhetoric and data over belief, and doesn’t fall into the “difficult decision that people disagree on” false equivalence. Monday’s decision is a clear, data-driven defense of the importance of access to comprehensive reproductive health care and an affirmation of abortion as a fundamental right. And that kind of defense has been a long time coming.