The Supreme Court’s decision in Whole Women’s Health v. Hellerstedt sends a clear message: State laws adopted to restrict access to abortion are unconstitutional.
Between 2010-15, state governments adopted over 290 different laws restricting access to abortion. They did this with the hope that the Supreme Court would defer to state’s regulations to make it much more difficult for women to have abortions.
But the court’s ruling in Whole Women’s Health today reflects that there are not five votes to uphold such laws. With Justice Kennedy joining the four liberal justices, there are only three votes on the Court to uphold laws restricting access to abortion, and for now the future of abortion rights seems secure.
The Texas law, one of many adopted that are referred to as “targeted restrictions of abortion providers,” required that any doctor performing an abortion have admitting privileges at a hospital within 30 miles and that all places where abortions are performed have surgical quality facilities, even if no surgical abortions are performed there. This would have, according to one estimate, closed 75% of all the facilities where abortions are provided.
The federal district court issued a preliminary injunction, finding that the law likely was unconstitutional as creating an impermissible undue burden on a woman’s right to abortion: there was no evidence that it protected women’s health (a woman experiencing complications at an abortion facility would be taken to the local emergency room), and there was no need for surgical level facilities.
Indeed, the district court found that the Texas law was adopted with the purpose — and would have the effect — of keeping women from having access to abortions.
The U.S. Court of Appeals for the Fifth Circuit reversed. The Fifth Circuit said that it is for the state legislature, not the judiciary, to assess whether the law protects women’s health.
And now the Supreme Court, in a 5-3 decision, reversed.
Justice Stephen Breyer wrote the opinion for the court, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. The court stressed that in deciding whether a law imposes an undue burden on abortion, it is for the judiciary to balance the justifications for the restrictions against its effect on the ability of women to have access to abortions.
The court concluded that the Texas law would greatly limit the ability of women in Texas to have access to abortions, without any evidence that the restrictions were necessary to protect women’s health.
In one sense, the court’s decision is narrow and is just an analysis of this particular law, including a detailed analysis of the facts surrounding it. But the case sends a much broader message.
The court was clear that the judiciary must carefully scrutinize laws restricting abortion that were adopted with the purported justification of protecting women’s health. The majority rejected judicial deference to the legislature.
The laws recently adopted to restrict abortion are about keeping women from having access to abortion, though often it is claimed, like in Texas, that they are about the safety of abortion procedures. The court’s ruling in Whole Women’s Health makes it likely that these many targeted restrictions of abortion provider laws will be struck down.
Perhaps most important, the case reflects a willingness on the part of Justice Anthony Kennedy to invalidate abortion restrictions.
When Kennedy first came on the court, it was widely thought that he would vote to overrule Roe v. Wade. In fact, in the first abortion case where he participated, Webster v. Reproductive Health Services, in 1989, he joined with Chief Justice William Rehnquist and Justice Byron White — the two dissenting justices in Roe — in an opinion that would have overruled Roe v. Wade.
But in 1992, in Planned Parenthood v. Casey, Justice Kennedy was part of a five-justice majority to reaffirm Roe. Since then, however, in every abortion case, Justice Kennedy has been with the conservative majority in voting to uphold restrictions on abortions. For example, in Gonzalez v. Carhart, in 2007, Justice Kennedy wrote the court’s opinion upholding the federal Partial-Birth Abortion Ban Act.
Obviously, if Justice Kennedy had voted with Chief Justice Roberts and Justices Thomas and Alito to uphold the Texas law, it would have been a 4-4 split and the Texas law would have gone into effect. Justice Kennedy’s vote means not only that the Texas law is invalidated, but also that there are only three reliable votes on the court to uphold restrictions on abortion.
If a Democratic nominee, such as Merrick Garland, replaces Justice Scalia, and especially if a Democrat fills other likely vacancies on the court in the next several years, the constitutional right of women to have access to abortions will be secure for the foreseeable future.
The decision in Whole Women’s Health v. Hellerstedt thus could be the beginning of a new era of greater judicial protection of abortion rights.