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The Supreme Court Strikes Down the Texas Abortion Law HB2

The U.S. Supreme Court on Monday made its decision on the stringent abortion laws passed by the Texas Legislature in 2013, voting 5-3 to strike down House Bill 2 on the case Whole Women's Health vs. Hellerstedt.

The law hinged on two key requirements for abortion clinics. The first required doctors performing abortions to have admitting privileges to a hospital located within 30 miles of the clinic. Second, the law required abortion clinics to be retrofitted to ambulatory surgical center standards, including having wide hallways, large rooms and other pricey construction and equipment requirements to stay in business.

That one provision required abortion clinics to dump as much as $1.5 million into building improvements and upgrades in order to meet the hospital-like standards of ambulatory surgical centers. Since the law was passed, most remaining abortion providers abortion clinics across the state have been forced to shutter, taking the number of clinics from more than 40 to a little more than a dozen.   

Providers say HB2, if fully implemented, would have forced all but 9 abortion clinics, all located in the state's metro hubs of Houston, Dallas-Fort Worth, Austin and San Antonio, to close. A study earlier this year from the Texas Policy Evaluation Project, at the University of Texas at Austin estimated an implemented HB2 would have meant nearly 1 million Texas women of reproductive age would live more than 150 miles away from an abortion provider. That figure boils down to about one in six women of reproductive age in the state not having reasonable access to a clinic. 

This decision marks the end of a long legal and political battle over the controversial law. The fight began as soon as the was passed during the final hours of the 2013 state legislative session, despite a famed filibuster by former state Sen. Wendy Davis. Opponents quickly challenged HB2 in court, starting the long legal journey that led to the Supreme Court.

The case made it to the U.S. Fifth Circuit Court of Appeals last year, where a panel of judges on the court voted to uphold the law. However, the Supreme Court stepped in  and stopped the final prong, the ambulatory surgical center requirement, of HB2 from being enacted, and agreed to take the case. Justices heard the case in March, a month after Justice Antonin Scalia, the famed conservative, sharp-tongued jurist, died suddenly, leaving the conservative bloc without Scalia's vote or his voice.

Throughout the case, Whole Women's Health vs. Hellerstedt, abortion providers and the state attorneys fighting to uphold the law have argued both sides of these two questions: whether the restrictions HB2 places on abortion providers are “reasonably related” to a “legitimate state interest,” and whether those restrictions ultimately constitute an “undue burden” on a woman's constitutional right to choose.

Ultimately, the majority of the court decided the law did place an "undue burden" on women, thus impeding a constitutional right, finding both of HB2's requirements to be unconstitutional.

This reality seemed to weigh on Justice Anthony Kennedy, the resident swing vote on the court, during oral arguments earlier this year. Kennedy asked questions and made it clear he was very interested in how HB2 would actually effect women, if the law would impose an "undue burden" on women in the state.

“Justice Kennedy seemed to indicate in the oral arguments that he was concerned with how far women had to go to exercise their constitutional right to an abortion, and he noted that it's poor, Hispanic women who would typically be the ones to truly carry this burden,” Peter Linzer, a constitutional law professor at the University of Houston, says. “That line of thinking decided the case.” Kennedy didn't write the opinion or take a starring role in this decision, but he played a crucial part by voting to strike down the law.

However, Linzer says history already indicated how this would play out. Kennedy was coauthor of Planned Parenthood v. Casey, the last major abortion case the court heard, back in 1992, Linzer noted. In that case, the justices probably had the votes to overturn Roe v. Wade, but they decided not to, Linzer says. "Given that Kennedy was one of the authors of the opinion back then, that's a big argument that Kennedy was not going to uphold a reversal of his own opinion now," Linzer says.

Justice Stephen Breyer stated in his majority opinion on the decision that the law did indeed place an unconstitutional "undue burden" on Texas women.

Quoting Casey, Breyer wrote "a provision of law is constitutionally invalid, if the 'purpose or effect' of the provision 'is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.'" He then went over the requirements of the law quickly before summing up the court's opinion in one unstinting paragraph:

 "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 previability abortion, each constitutes an undue burden on abortion access ... and each violates the Federal Constitution."
Breyer was joined by Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsberg and Kennedy in his opinion. Ginsberg also penned her own concurring opinion.  

In her opinion Ginsberg pointed out the state's argument HB2 was intended to "protect the health of women" was not one she bought for an instant, since the risks in an abortion procedure are actually much less than those in childbirth, in a tonsillectomy, dental surgery or a colonoscopy, although none of these other procedures have the same level of regulation. 

"Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions.' When a state severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. "

With nods to previous abortion case opinions,  Ginsberg concluded that so long as the court adheres to the decisions made in Roe and Casey, the "targeted regulation of abortion providers laws like HB2 that 'do little of nothing for health but rather strew impediments to abortion' will never hold up to judicial inspection. 

Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas voted to uphold the Fifth Circuit decision.

In a dissent written by Thomas, the justice made it clear he's not happy about this decision. Thomas also made a nod to the fact that things might not have gone this way if Justice Antonin Scalia, the strong-voiced conservative justice who died earlier this year, was still on the court, by starting his dissent with a quote from one of Scalia's opinions:

Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency 'to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.'"
Alito also filed a scathing dissent which Roberts and Thomas joined.  Alito states that the constitutionality of abortion laws shouldn't even be up for discussion in relation to this case. Basically, he doesn't think justices should even have heard the case since he feels it was already properly decided by a competent court, the notoriously conservative Fifth Circuit. Alito really gets down to it when he writes that the court has broken its own rules by deciding to strike down both parts of HB2, including the admitting privileges requirement that had already been decided in favor of the state:

In this abortion case, however, that rule is disregarded. The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek. 
So that's it. No more HB2. 

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Dianna Wray is a nationally award-winning journalist. Born and raised in Houston, she writes about everything from NASA to oil to horse races.
Contact: Dianna Wray