Today, the Supreme Court struck down parts of a Texas law that imposed standards on abortion providers that had the effect of reducing the number of abortion facilities in the state by at least half. In a 5-3 ruling in which Justice Anthony Kennedy joined the liberal wing of the Court, the justices said the restrictions placed an undue burden on a woman’s constitutional right to seek an abortion. The 2013 law required all abortion facilities to meet state standards for ambulatory surgical centers (ASCs) and required doctors performing abortions to have admitting privileges at a nearby hospital.
Justice Stephen G. Breyer wrote in the majority opinion, “We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”
Michelle Mello, professor of law at Stanford Law School and professor of health research policy at the Stanford School of Medicine, as well a core faculty member of Stanford Health Policy, was a signatory to a brief submitted to the Supreme Court by public health academics and the American Public Health Association in support of the abortion providers’ challenge. In this Q&A, she discusses the key points of the Whole Woman’s case.
What was the main argument of the amici curaie brief submitted to the Supreme Court by public health academics and organizations?
There were two critical factual points that had to be made. First, although the Texas law’s provisions were putatively adopted to benefit women’s health, they actually had no medical benefit. Second, the law had a rapid, dramatic effect on access to abortion in Texas. Particularly because in Texas several other restrictions already limited access to abortion and funding for family planning services was scant, this poses a real threat to public health.
Can you say more about why the provisions of the law did not protect women’s health?
The standards were completely unnecessary. Abortion is an extremely safe procedure; complications rarely occur. The facilities already had protocols in place to ensure safe transfer to hospitals in the event of an emergency. But when complications do occur, they usually arise after the woman returns home, so transfer from the facility to the hospital isn’t an issue. And there’s no reason a woman needs to receive emergency care from the same doctor who performed the abortion.
Many of the standards for ASCs are simply irrelevant to providing safe abortions. Many abortions aren’t surgical, they’re medical (chemical). And standards relating to things like providing general anesthesia, avoiding infections to open wounds, having an advanced heating and air condition system, and having a particular traffic pattern from the operating room to the recovery room just don’t apply. The state’s argument about protecting women’s health was just a pretext.
It was a dangerous pretext, in fact, because these were standards that most abortion facilities clearly were not going to be able to meet. Many hospitals require doctors to admit a minimum number of patients in order to maintain admitting privileges, but abortion is so safe that abortion providers generally can’t do that. And fitting out a clinic to meet ASCs is prohibitively expensive. ASCs can afford it because they charge for expensive operations like cosmetic surgeries, hysterectomies, and hernia repairs; abortion providers can’t.
Why do you and the other signatories consider this a public health issue?
More than 60,000 Texas women per year obtain legal abortions. While we’d all like to see this number go down, you can’t restrict access to abortion while also failing to provide adequate support for other methods of family planning. History makes it abundantly clear that the result will be greater numbers of women resorting to illegal, unsafe abortions or facing the mental and physical health risks of carrying unwanted pregnancies to term.
Does the Supreme Court’s holding have implications beyond this case?
Yes, because the Court clarified how it will apply the “undue burden” standard of Planned Parenthood v. Casey in future cases. The majority said that courts must balance “the burdens a law imposes on abortion access” against “the benefits those laws confer.” The justices also clarified that appellate courts can take a deep dive into the factual evidence about a law’s effects presented earlier in the case. These holdings collectively make it harder for states to adopt abortion restrictions based on flimsy arguments about how they will benefit women.
Michelle M. Mello is Professor of Law at Stanford Law School and Professor of Health Research and Policy at Stanford School of Medicine.