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SCOTUS Rules There Really Is Such a Thing As Undue Burden

"It is beyond rational belief that HB 2 could genuinely protect the health of women," wrote Justice Ginsburg in today's ruling. What does this victory mean for the future of repro rights?
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It was 1992, and the Supreme Court just issued the most important abortion ruling since Roe v. Wade made abortion legal in all 50 states almost 20 years earlier. In Planned Parenthood v. Casey, the court decided that it was within a state’s rights to restrict abortion during the first trimester, as long as those restrictions were done in order to allegedly protect the health of the patient undergoing a procedure, and that the rules didn’t create an “undue burden” on the ability to access an abortion.

Since that ruling, abortion opponents passed literally hundreds of requirements that must be met prior to terminating a pregnancy. From 24 to over 72 hours worth of waiting time between doctor’s appointments, to mandatory ultrasound descriptions of an embryo or fetus, to doctors telling patients that their abortion could cause a myriad of medically unproven long-term health effects, anti-abortion legislators have made obtaining an abortion a long and emotionally trying process.

But it was the introduction of a host of medically unnecessary clinic regulations themselves that pushed restricting abortion into hyperdrive by rapidly closing clinics across the country. Abortion providers closed and reopened and closed yet again, like a game of whack a mole, with far right politicians acting as the hammer trying to put them down once and for all.

Ambulatory Surgical Center (ASC) requirements were meant to force clinics to undergo costly renovations or even purchase new buildings in order to meet building standards for emergencies completely unlikely to ever occur (after all, how probable is it that two wheeled gurneys will need to pass each other in a hall at the same time when getting a medical procedure that has fewer complications than childbirth – especially if that clinic only offered medication abortion?). Admitting privileges mandated a hospital relationship in order for a doctor to perform an abortion, despite the fact that the doctor him or herself would never be the physician who would treat the patient in an emergency room if a medical emergency actually did send her to a hospital for care.

Both requirements were thrown together in SB 5—later HB 2—a Texas omnibus abortion bill first shouted down into defeat by thousands of angry pro-choice activists in 2013 before it was revived during a second special session and passed into law. Now, after three years of court battles and over a dozen clinic closures, the Supreme Court has ruled that both requirements create an undue burden on abortion access, striking both down.

Whole Woman’s Health v. Hellerstedt will be a monumental decision for a number of reasons. Justice Anthony Kennedy, a moderate and a Catholic, sided with the majority in the 5-3 ruling, marking the first major case in which he has opposed an abortion restriction. His last decision to protect legal abortion? Planned Parenthood v. Casey, where the rules for how to “constitutionally” restrict abortion rights were established in the first place. For Kennedy, this decision essentially brings Casey to its inevitable conclusion. Casey was about allowing states to restrict abortion until it was too hard to access. Whole Woman’s Health is Kennedy saying, “Okay, you’ve finally done it. You have to stop now.”

“Monday's decision is not just a significant win for abortion rights and access in Texas,” said Jessica Mason Pieklo, legal analyst for Rewire, a reproductive rights news site. “It was a forceful rejection by the Supreme Court of attempts by a conservative federal judiciary to water down constitutional protections for the fundamental right to an abortion.”

The ruling is good news for Texans, who are directly and immediately impacted, but should be just as good for the nation as a whole. In a court calendar riddled with ties due to the death of conservative Justice Antonin Scalia and the GOP’s refusal to allow a new justice to be seated, it’s been increasingly difficult to obtain a ruling that actually has a majority in order to set a precedent. WWH bucks this trend, which likely will allow other states with blocked or pending ASC or admitting privileges laws to keep them from being enforced or challenge them to eliminate them. For Louisiana, Alabama, North Dakota and Mississippi this is especially good, as all or most of their clinics were in danger of eventually being closed with the same requirements. Wisconsin also should no longer need to fear an admitting privileges requirement that has been long blocked in the courts.

While the WWH decision was quite possibly the best outcome that abortion rights supporters could have hoped for, it’s unlikely to be the final say on access. Anti-abortion activists reacted with disappointment and anger, and vowed to find other alternative paths to limiting the procedure for the sake of “women’s health.”

“The court has essentially sanctioned patient abandonment on behalf of the abortion industry,” Father Frank Pavone of Priests for Life stated in a conference call he hosted with the three Texas women who helped craft HB 2.

Pavone told DAME Magazine that the anti-abortion movement would not be deterred by the ruling and would continue pushing abortion restrictions into the states, even potentially those similar to the ones just struck down by the Supreme Court. “Our focus legislatively remains unchanged for the pain capable and dismemberment bills and for defunding Planned Parenthood,” he said via email. “And we’re not going to slack off on abortion clinic regulations. We will study the decision in depth and craft every last bit of legislation that can stand up to this decision.”

Whatever new restriction comes next to the Supreme Court, a new standard has been set. Five current justices believe that there is such a thing as an undue burden to the right to access a safe, legal abortion, and should be applying that to future cases. And if all goes well in November’s presidential elections, that number should only go up.

 

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Robin Marty is a freelance writer and speaker and the author of CROW AFTER ROE, a book outlining the blueprint to end abortion one red state at a time. Marty’s articles have appeared at Cosmopolitan.com, Politico, The Guardian, and other publications, and she is a Women’s Media Center SheSource Expert on Reproductive Rights and Politics. Follow her: @robinmarty
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