Abortion providers sued Texas shortly after it was signed into law, arguing that its strict requirements imposed an “undue burden” on women who seek abortions. That phrase comes from Planned Parenthood v. Casey, a landmark Supreme Court ruling in 1992 in which the justices struck down a state law for obstructing a woman’s constitutional right to obtain an abortion. In June 2015, the Fifth Circuit Court of Appeals ruled that the two restrictions did not impose an undue burden on Texas women seeking abortions. The U.S. Supreme Court blocked its enforcement while they considered the case.
For Texas women, the impact could have been extraordinary. My colleague Garrett Epps noted the restrictions threatened to close all but a handful of Texas’s 40 abortion clinics. For more than 1 million women of reproductive age in the vast state, those remaining clinics would be more than 150 miles away.
To Breyer and his colleagues in the majority, that qualified as an undue burden. “In the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity super facilities,” he wrote. “Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.”
H.B. 2’s proponents defended the law was a necessary measure to safeguard women’s health and safety. Texas Governor Greg Abbott, a strong supporter of the regulations, quickly criticized the Court’s ruling. “This decision erodes States’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” he said in a statement. “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”
But the Court cast doubt upon those motives, noting the regulations seemed disconnected from their stated purposes.
“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,” Breyer observed, referring to the admitting-privileges requirement.
“Another commonsense inference that the District Court made is that these effects would be harmful to, not supportive of, women’s health,” he later added.
In a brief concurrence, Justice Ruth Bader Ginsburg made the point about the regulation’s true motives more directly.
“Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements,” she wrote. “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.’”