In an opinion by Justice Stephen Breyer, the majority (Breyer and Justices Anthony Kennedy, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor) told the states that “health regulations” of abortion need to be supported by evidence showing that they actually improve, well, health. Texas—as the state’s own lawyer, Scott Keller, essentially conceded at oral argument—could show no such evidence. Though labeled a “health law,” the statute, H.B. 2, imposed rules that would provide no clear benefit to patients but would make abortion radically harder to obtain.
That plough, the majority said, won’t scour.
The two regulations at issue were: (1) a requirement that any clinic performing abortions meet all standards for an “ambulatory surgical center,” where invasive minor operations can be performed without requiring hospitalization; and (2) a requirement that any physician performing abortions have “admitting privileges”—the ability to order a patient admitted without an initial examination by another doctor—at a hospital within 30 miles of the clinic. The law was in effect for two weeks; during that time, a dozen clinics closed. Once it was stayed, they reopened temporarily; if the law took effect permanently, however, it would (according to evidence submitted to a district court in Texas) leave only seven in operation. These would be large health centers in large cities—leading, among other effects, to a 2,800 percent increase in the number of women in Texas living more than 200 miles from an abortion facility.
Abortion cases really are decided by a special rule that applies only to them—the so-called “undue burden” rule. In Casey, a three-justice plurality held that “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.” Regulations may also “express profound respect for the life of the unborn,” if they aren’t an “undue burden.” Here’s the definition of an “undue burden”: “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
Got that? An “undue burden” is a “substantial obstacle.” But whatever that is, the state can’t impose it on women or doctors just because it doesn’t like abortion. A regulation either has to communicate “profound respect for unborn life” or “foster the health of a woman.”
At trial in federal district court, the evidence showed that neither of the Texas regulations “foster[ed]” anything but clinic closures. “Admitting privileges” have no relation to healthy outcomes because the state already requires abortion clinics to have “working arrangements” with nearby hospitals; thus, patients needing hospitalization are already transferred smoothly to hospital care. In addition, “admitting privileges” don’t prove that doctors who have them are more competent than those who do not—the privileges are essentially an economic arrangement designed for doctors who are staff or deeply involved in a specific hospital. And, finally, complications requiring hospitalization are incredibly rare—and when they happen, they happen after the abortion, usually when a woman has returned to her home many miles away. As Breyer noted, “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 there was no such evidence in the record.”