The Right To Choose Survives! Texas Anti-Abortion Law Struck Down By Supreme Court


abortion demonstrator

The Supreme Court struck down a Texas anti-abortion law on Monday that threatened to shut down the overwhelming majority of the state’s abortion clinics.

Whole Woman’s Health v. Hellerstedt concerns HB 2, a law which combined expensive architectural and other requirements for clinics with difficult-to-obtain credentialing requirements for abortion providers. Had the law been upheld, at least 32 of the 40 abortion clinics that existed in Texas prior to the law were expected to shut down.

HB 2, moreover, was masterminded by Americans United for Life (AUL), a sophisticated anti-abortion group that drafts model legislation for state lawmakers eager to restrict reproductive choice. Overruling Roe v. Wade, AUL claims on their website, “can be accomplished through deliberate, legal strategies that accumulate victories, build momentum, and restore a culture of life.” HB 2, and the Whole Woman’s Health litigation that arose to challenge the law, was one of AUL’s most aggressive efforts to accomplish this goal.

In essence, Whole Woman’s Health asked whether a state may enact laws that restrict access to abortion with little meaningful benefits for women’s health, so long as those laws are dressed up to resemble a health regulation. One provision of the law, for example, requires abortion clinics to comply with a long list of “electrical, heating, ventilation, air conditioning, plumbing, and other physical plant requirements as well as staffing mandates, space utilization, minimum square footage, and parking design” — requirements that typically are imposed upon “ambulatory surgical centers” within the state. Yet these requirements apply even in clinics that perform no surgeries. Many clinics only offer medication abortions, which are induced by a pill taken orally.

Similarly, the law’s requirement that abortion providers obtain admitting privileges in a nearby hospital bears little relationship to positive health outcomes. As the Texas Hospital Association explains, “thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges.” When a patient arrives at an emergency room, whether due to complications from an abortion or some other cause, hospitals treat that patient regardless of whether the patient previously received care from a doctor with admitting privileges at that particular hospital.

It’s worth noting that the outcome in Whole Woman’s Health was only possible because Justice Anthony Kennedy, a conservative and a mostly reliable vote against abortion, crossed over to vote with the Court’s more liberal bloc. Prior to HB2, Kennedy had only voted once to block a restriction on abortion.


Reprinted with permission from Think Progress, a branch of The Center for American Progress