Activists Celebrate Landmark Supreme Court Abortion Decision

As SCOTUSblog’s Amy Lowe reported, the plaza outside the Court quickly became a Beyoncé dance party today.

Why? Because this morning, the Supreme Court declared that laws masquerading as health and safety regulations designed to close down abortion clinics are unequivocally unconstitutional.

The Fifth Circuit Court decision upholding the unnecessary admitting privileges and ambulatory surgical center requirements of HB2 — the Texas omnibus anti-abortion law passed in 2013 — was overturned in the sweeping 5–3 Whole Woman’s Health v. Hellerstedt opinion penned by Justice Stephen Breyer.

Breyer dismantled notions that there is any health benefit to requiring doctors providing abortion care — one of the safest routine medical procedures in the country — to obtain admitting privileges at a hospital within 30 miles of the clinic, or for clinic owners to fund multimillion-dollar renovations to meet ambulatory surgical center certification requirements like hallway width, janitorial closet size, and the purchase and maintenance of expensive equipment not used for procedures performed at their facilities.

From the opinion:

“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.”

Breyer wasn’t done; he took aim at the entire premise on which anti-abortion legislators built their law and its defense:

“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.
We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

The reaction to this landmark decision has been, in short:

The victory is crucial in several ways, impacting not just Texas, but likely other states across the nation, too. Still, the fight for justice continues — and as is always the case when it comes to perpetually challenged reproductive rights, it must continue.

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In a statement, Amy Hagstrom-Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the case, summed up how reproductive-justice activists are feeling about this news:

“Today, the Supreme Court affirmed what we at Whole Woman’s Health have known all along — that every woman, no matter where she lives, deserves access to compassionate, respectful, and comprehensive care from a clinic she trusts. Today justice was served.
“From day one, Whole Woman’s Health rejected HB2’s insulting premise and we fought back. We took on the bully politicians. We have struggled every day since then against anti-choice regressive policies and our opposition’s best efforts to shut us down. And we won. Today, we made history and tomorrow we get back to work so that every woman who seeks abortion services can get the health care she needs with dignity and respect.”
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Amy Hagstrom-Miller outside the courthouse

The decision will have a particularly positive impact on low-income people and communities of color, which have been disproportionately affected by the law. Said Monica Simpson, executive director of women of color reproductive justice collective SisterSong:

“Today’s decision is a decisive victory for those who believe that we should each make our own decisions about abortion and that politicians should not inject their personal opinions by pushing medically unnecessary restrictions like admitting privileges in order to make abortion care harder to get. We know who is hurt when these kinds of sham laws are pushed through, so this is a big win for low-income women and women of color. What is clear to us is that politicians who push these restrictions often do not have any genuine commitment to the health, safety or prosperity of women of color, our families or our community.”

Of the 41 clinics in the state of Texas, 22 have closed over the past three years. Others — like the Whole Woman’s Health clinic in McAllen, Texas — have been in limbo, with the doors opening and closing as parts of HB2 have been implemented, challenged, enjoined, lifted, and wound their way through the courts. Those clinics that have closed cannot automatically reopen. Leases have been lost, staff have been forced to move on, licenses have expired. Today’s decision means that access in Texas will not erode further, but the work of rebuilding — particularly in West Texas and the Rio Grande Valley, where resources are scarce — will take time and money. In the meantime, activists and advocates will continue to work to close the gaps for those who must travel great distances at great costs on behalf of patients who often wait upwards of 30 days just to get an appointment at overburdened clinics.

“I came back to Texas when most of the state’s abortion clinics had already closed due to misleading and medically unnecessary laws and many patients were navigating a difficult and confusing path to access care,” Dr. Bhavik Kumar, a physician who provides abortion services at two Whole Woman’s Health clinics in Texas, said in a statement following the decision.

“While I am proud to provide abortion care, I am frustrated that these laws have made it so unnecessarily difficult — and most difficult of all for my patients,” continued Kumar.

“Some may think this case is only about abortion in Texas. But it is about all of us. It’s about recognizing the human impact of laws that treat any of us as less than, simply for being a woman, undocumented, LGBTQ, a person of color, low-income, or part of any marginalized group. By striking down HB2, the court has relieved one of so many obstacles in the path of justice for Texans and so many others around the country. My hope is that we never have to travel down this path again and that I as a physician can practice medicine without ideologically driven politics interfering with what is best for my patients.”

Hagstrom-Miller acknowledged that those obstacles also include laws that remain in place:

“Today’s decision marks a turnaround for Texas and for our country, but let me be clear: This win doesn’t mean the struggle is over. [T]his decision only addressed two of the many, many restrictions women face to get abortion care in Texas. Now we must redouble our efforts across the country to end similar state restrictions that push abortion out of reach for too many women. It’s time to pass proactive state laws so a woman has access to quality clinics in her community, can afford abortion, and doesn’t face shame or stigma when she seeks care.”

Anti-abortion regulations are not the only barriers to reproductive health care in Texas. As Jessica González-Rojas, executive director at the National Latina Institute for Reproductive Health, told The Establishment this morning, Whole Woman’s Health was just one of many decisions issued by the Court this month affecting marginalized groups in Texas.

“This is a huge huge victory for us — our constitutional rights have been restored and our dignity has been restored, but the one caveat for Latinas is that because of last week’s decision in United States v. Texas, we are still denied our full rights,” González-Rojas said. “Today we celebrate, tomorrow we continue to fight. We have to make sure all people have access to abortion care — no matter their status, their gender identity, or the money in their pockets.”

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Poster outside the courthouse

Yamani Hernandez, executive director of the National Network of Abortion Funds, celebrated the decision with tempered enthusiasm.

“One instance of victory does not yet create the support and access we truly need for abortion to be not just legal, but a reality for anyone who needs it,” Hernandez said in a statement. “When TRAP laws like HB2 are recognized as unconstitutional, it gives organizations that fund abortion the ability to focus on barriers like the Hyde Amendment, waiting periods, parental consent laws, and mandated counseling laws.”

While none of those other laws — no matter how similar — Hernandez referenced are automatically invalidated, having the undue burden standard further defined and existing precedents reaffirmed will create a clear path for additional challenges from around the country. Lower courts will now rely on Whole Woman’s Health’s precedent when hearing challenges on admitting privileges and ambulatory surgical center provisions, which means those cases shouldn’t have to wind their way to SCOTUS to be overturned. According to the Guttmacher Institute, now that Texas provisions have been struck down, 13 states require abortion providers to be affiliated with a local hospital and 21 have onerous building requirements comparable or equivalent to the state’s licensing standards for ambulatory surgical centers.

Per SCOTUSblog contributor Tejinder Singh, “I think that WWH [Whole Woman’s Health] is a strong reaffirming of [Planned Parenthood v. Casey], and a clarification that the Casey standard means more than perhaps some thought it did.”

Essentially? This is what SCOTUS had to say to anti-abortion legislators across the country:

SCOTUSblog’s Amy Howe thinks Whole Woman’s Health could lead to action on Currier v. Jackson Women’s Health Organization — the case suing to allow enforcement of Mississippi’s currently enjoined admitting privileges law — as early as tomorrow. With the standard set, the Court could turn down the case, thus leaving the injunction in place indefinitely and keeping the last clinic in the state open.

According to Rupali Sharma, legal fellow for the Center For Reproductive Rights — the organization representing Whole Woman’s Health as they challenged HB2 — the Court will now apply the newly affirmed and strengthened precedent in Whole Woman’s Health to Currier. With the admitting privileges provision out of Texas struck down, the state of Mississippi essentially no longer has a case for their nearly identical law.

“As long as they don’t take the Mississippi case, their status quo — which is not so great but better than the alternative — stays in place,” Sharma told The Establishment.

The anti-choice legislators of Louisiana, which is wedged in between Texas and Mississippi, have spent this year attempting to create an amplified crisis in the region by whittling abortion access down to just one clinic, located in the southeast corner. Sharma expects today’s decision to lead to victories for reproductive justice advocates there as well.

“The [previous] precedent is Casey, but we’re going to be reaffirming that in a way that requires it to be applied,” said Sharma. “The Fifth Circuit Court — even with all of their dysfunction — would be expected to apply this new precedent. So a win in Texas is like a win for Louisiana as well. We should expect to win.”

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Poster outside the courthouse

We will have to wait and see how the precedent from Whole Woman’s Health will be cited and applied in challenges to onerous abortion restrictions beyond admitting privileges and building requirements. But, the care Breyer took to further define “undue burden” bodes well for those potential challenges.

And the work will continue. Just as 1973’s Roe v. Wade didn’t mean the end of the fight to ensure that all of the rights of all Americans would be respected and protected, today’s landmark decision only highlights the importance of who sits on the bench. As constitutional law professor and expert on the intersection of gender and the law David Cohen keeps reminding me and anyone who’ll listen, we have a vacancy and also three justices who will be 78 or older at the inauguration in January. Over 1,000 anti-abortion laws have passed since Roe v. Wade — 288 between the 2010 midterms and the start of this year. If we want to ensure that those laws can be overturned and any proactive legislation enacted will stand, we can’t ever stop fighting — or voting.

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All images courtesy of All Above All