How the Supreme Court Made Abortion Even More Unsafe For Women


The Court’s 5-3 opinion today in Whole Women’s Health et al. v. Hellerstedt (Tex. Health Dept) struck down Texas’ requirements that:

abortionists must have admitting privileges at a hospital within 30 miles of the abortion clinic at which they practice;

clinics must meet the health and safety standards of Ambulatory Surgical Treatment Centers.

Ginsburg, Kagan, Sotomayor, Breyer and Kennedy voted to strike the laws. Breyer wrote the majority opinion.

Ginsburg wrote a concurring opinion.

Thomas wrote a dissent.

Alito, joined by Thomas and Chief Justice Roberts, wrote another dissent.

Takeaway #1: What we have is the specter of legal-abortion-supporters today cheering the demise of laws intended to make abortion safer for women. Think about that for a second…this is where we are in “abortion-world.” And abortion supporters will get called “pro-woman” for their stance.

Here is how the majority came to their conclusion.

First, they had to get past the claim by Texas that the questions in this case had been litigated in an earlier action where the abortionists lost, but had not sought review at the Supreme Court. Though the earlier suit really had involved the same complainants (“plaintiffs”) bringing the same challenge, the majority twisted the doctrine of “res judicata” (no re-litigating the same claim a second time) to find that the plaintiffs could sue on the same claim twice.

Second, the majority set forth the existing Casey precedent/standard as banning states from placing a “substantial obstacle in the path of a woman’s choice”; and that regulations with such a purpose or effect – of imposing a substantial obstacle – impose an “undue burden” constitutionally on a woman’s decision to have an abortion and must be struck down.

The guts of the majority’s “undue burden” analysis were:

-the claimed relationship between the two new laws and the shutdown of many clinics in Texas (on the assertion that the laws were too expensive with which to comply, and that there are many arbitrary reasons any doctor might get denied local admitting privileges); and that remaining clinics did not have a sufficient capacity to perform the usual numbers of abortions Texas has;

-the claim that too many women (a “large fraction”) would be up to three hours away from a clinic;

-the claim that abortions were already safe in Texas [forgetting the 100% death rate of children]; that the regulations did not actually improve women’s health (claiming here that childbirth is more dangerous than abortion, as are other procedures which do not require ambulatory surgical treatment centers)

-the claim that the regulations wouldn’t really add to women’s safety.

Takeaway #2: The majority also made the stunning statement that if doctors – like Pennsylvania’s notorious Gosnell were “determined wrongdoers” then – heck! – safety laws wouldn’t convince them to do the right thing anyway. [I would add that you could apply this law to rapists, murderers, and the like: “heck! Why ban behaviors we can’t stop by means of laws alone!]

Justice Ginsburg wrote separately in order to assure – it seems – that the usual pro-abortion shibboleths didn’t go missing from the case:

-the claim that childbirth is more dangerous than abortion [ignoring the 100% death rate of children];

-the claim that women would go to “unlicensed rogue” abortionists were abortion too hard to obtain.

Justice Thomas wrote an excellent and nuanced dissent about the different (and harsher) standards of review the Court seems to employ whenever its non-textual/Court-invented “personal” rights are at stake. And about how this is just lawless behavior by a majority of powerful judges. He closed with a Scalia quotation:

The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.”

Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989).

Alito, joined by Thomas and Roberts, performed not only a detailed exposition of the Court’s failure to make any kind of searching inquiry into:

-abortionists’ claims about the cause of clinic closures,

-the expense of carrying out the new laws,

-and the capacities of extant clinics to perform all Texas abortions,

…but Alito also showed:

-that Casey had explicitly allowed a 3-hour trip to an abortion clinic to be counted as a reasonable distance, not an “undue burden”;

-that this case was “res judicata” – already decided against the abortionists in a prior action –  but the Court bent all the rules of res judicata to say otherwise because of its passion for abortion rights;

-that the Texas laws contained a provision requiring judges to sever the nonburdensome parts of the clinic safety law from its burdensome parts; but that the Court completely disregarded this possibility for “severability.”

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