Justices strike Texas' criteria for abortions

By 5-3, rules on clinics fall

Bethany Van Kampen (left) hugs Alejandra Pablus as they celebrate Monday during a rally at the Supreme Court in Washington after the court struck down Texas’ regulation of abortion clinics.
Bethany Van Kampen (left) hugs Alejandra Pablus as they celebrate Monday during a rally at the Supreme Court in Washington after the court struck down Texas’ regulation of abortion clinics.

WASHINGTON -- The Supreme Court issued its strongest defense of abortion rights in a quarter-century Monday, striking down Texas' widely replicated rules that sharply reduced the number of abortion clinics in the nation's second-most-populous state.

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AP

Amy Hagstrom Miller (second from right), founder of Whole Woman’s Health, a Texas women’s health clinic that provides abortions, leaves the Supreme Court in Washington on Monday with Center for Reproductive Rights President Nancy Northup (far right) after the justices struck down the Texas abortion law known as HB2.

By a 5-3 vote, the justices rejected the state's arguments that its 2013 law and follow-up regulations were needed to protect women's health. The rules required doctors who perform abortions to have admitting privileges at nearby hospitals and forced clinics to meet hospitallike standards for outpatient surgery.

The clinics that challenged the law argued that it was merely a veiled attempt to make it harder for women to get abortions by forcing the closure of more than half the roughly 40 clinics that operated before the law took effect.

Justice Stephen Breyer's majority opinion for the court held that the regulations are medically unnecessary and unconstitutionally limit women's right to abortions.

Breyer wrote that "the surgical-center requirement, like the admitting privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an 'undue burden' on their constitutional right to do so."

Thirteen states have similar requirements, enacted as part of a wave of abortion restrictions that states have imposed in recent years. Others include limits on when in a pregnancy abortions may be performed and the use of drugs that induce abortions without surgical intervention.

Amy Hagstrom Miller, the owner of several Texas clinics among her eight facilities in five states, predicted that the decision would "put a stop to this trend of copycat legislation."

Texas Attorney General Ken Paxton said the law "was an effort to improve minimum safety standards and ensure capable care for Texas women. It's exceedingly unfortunate that the court has taken the ability to protect women's health out of the hands of Texas citizens and their duly elected representatives."

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer's majority.

Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented.

Thomas wrote that the 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.'" Thomas was quoting an earlier abortion dissent from Justice Antonin Scalia, who died in February. Scalia has not yet been replaced, so only eight justices voted.

Alito, reading a summary of his dissent in court, said the clinics should have lost on technical, procedural grounds. Alito said the court was adopting a rule of "If at first you don't succeed, sue, sue again."

Ginsburg wrote a short opinion noting that laws like Texas' "that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection" under the court's earlier abortion-rights decisions. She pointed specifically to Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, of which Kennedy was one of three authors.

In her concurring opinion, she alluded to a criminal named 10 times in Monday's court opinions: Kermit Gosnell, the Philadelphia physician who was convicted of first-degree murder five years ago for killing three infants who were born alive during attempted abortions. He was also found guilty for the wrongful death of a patient.

Texas attorneys had pointed to Gosnell in their oral arguments before the Court. But Ginsburg wrote that it's when regulations reduce access to abortions that women are more likely to turn to underground clinics that might resemble Gosnell's practice.

"When a State severely limits access to safe and legal procedures," she wrote in a concurring opinion, "women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety."

Effect on Texas clinics

Abortion providers said the rules would have cut the number of abortion clinics in Texas to fewer than 10 if they had been allowed to take full effect.

"We're thrilled that today justice was served and our clinics stay open," said Hagstrom Miller, the president and chief executive of Whole Woman's Health, which operates abortion clinics in Texas and was the lead plaintiff in the case.

A decision upholding the law would have shut four clinics in Houston, two in El Paso and one each in Austin, Fort Worth and San Antonio, as well as one in McAllen that would have closed temporarily.

Nancy Northup, president of the Center for Reproductive Rights, which represented the clinics, said, "The Supreme Court sent a loud and clear message that politicians cannot use deceptive means to shut down abortion clinics."

Vicki Saporta, president and chief executive of the National Abortion Federation, said that since the law was passed, the group's hotline had been flooded with calls from Texas women.

"Too many of those women, after hearing how far they would have to travel to access care, simply said, 'I can't get there,'" she said in a statement. "Other women have made appointments, hopeful they could find someone to drive them, only to have to cancel at the last minute. We've even heard from women forced to spend the night in their car because they couldn't afford a hotel or another round trip to the clinic."

President Barack Obama praised the decision, saying, "We remain strongly committed to the protection of women's health, including protecting a woman's access to safe, affordable health care and her right to determine her own future."

Democratic presidential candidate Hillary Clinton called the outcome "a victory for women in Texas and across America."

Abortion opponents had hoped Kennedy, who wrote a 2007 opinion upholding a federal ban on a certain type of abortion, would conclude that states can enact health-related measures to make abortions safer.

Instead, he sided with his four left-leaning colleagues.

The court "has stripped from states the authority to extend additional protections to women such as clinic safety standards or admitting privilege requirements for abortionists," said Notre Dame University law professor Carter Snead.

Texas is among 11 states with similar admitting-privileges requirements, according to the Center for Reproductive Rights. The requirement is in effect in most of Texas, Missouri, North Dakota and Tennessee. It is on hold in Alabama, Arkansas, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin.

The hospital-like outpatient surgery standards are in place in Michigan, Missouri, Pennsylvania and Virginia, and are blocked in Tennessee and Texas, according to the center.

Texas passed a broad bill imposing several abortion restrictions in 2013. Clinics won several favorable rulings in a federal district court in Texas. But each time, the New Orleans-based 5th U.S. Circuit Court of Appeals sided with the state.

Breyer's opinion was a rebuke of the appeals court and a vindication for U.S. District Judge Lee Yeakel, who had held a trial on the challenged provisions and struck them down.

Separate lawsuits are pending over admitting-privileges laws in Louisiana and Mississippi, the other states covered by the 5th Circuit. The laws are on hold in both states, and a panel of federal appellate judges has concluded the Mississippi law probably is unconstitutional because it would force the only abortion clinic in the state to close.

Arkansas' law

It remained unclear Monday night how the ruling on the Texas law would affect the Arkansas abortion law that is also being challenged in federal court.

Act 577 of 2015, among other measures, requires that abortion providers use a doctor who has admitting privileges at a hospital, similar to the now-invalidated Texas law.

Arkansas' law was challenged in federal court late last year, and U.S. District Judge Kristine Baker issued an injunction that stopped the law from taking effect Jan. 1 of this year.

Baker's order is being appealed by state attorneys at the U.S. 8th Circuit Court of Appeals in St. Louis.

On Monday, an official with Planned Parenthood of the Heartland -- which covers Arkansas and challenged the law in Baker's court -- said that the Supreme Court ruling was the right one and that they'd continue to challenge abortion restrictions.

The official did not indicate how the ruling would affect the challenge of the Arkansas law.

Arkansas Attorney General Leslie Rutledge, a Republican, said she will review the recent ruling and how it will affect the case on appeal in St. Louis.

"Arkansas, like Texas, has a profound interest in protecting the health of all women, but today's unfortunate ruling puts that at risk," she wrote in a statement. "The Court has issued a decision that makes it even more challenging for a State to provide common sense health and safety regulations for abortion procedures."

A spokesman for the Arkansas chapter of the American Civil Liberties Union, Rita Sklar, said that lawmakers in Arkansas should heed the message sent by the U.S. Supreme Court, one that she said she thinks signals Arkansas' law will meet a similar fate as the Texas statute.

"The Court recognized these abortion restrictions for what they are: sham laws that do nothing to protect a woman's health but do prevent her from getting the care she needs. The sham stops today," Sklar wrote in a press statement. "As for [the Arkansas case] pending in the 8th circuit... we believe that, in light of this decision, the court is more likely to find the law unconstitutional."

Information for this article was contributed by Mark Sherman of The Associated Press; by Spencer Willems of the Arkansas Democrat-Gazette; by Manny Fernandez and Abby Goodnough of The New York Times; and by Danielle Paquette of The Washington Post.

A Section on 06/28/2016

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