SCOTUS Whole Woman’s Health Decision: Casey Endures by Professor Jane S. Schacter

A whole body of legal scholarship that travels under the name of “law and society” is devoted to studying the difference between the “law on the books” and the “law in action.” The last 25 years of fights about a woman’s constitutional right to abortion have provided a stark example of this difference. In a landmark opinion, Whole Women’s Health v. Hellerstedt, the Supreme Court weighed in and took some important steps toward better aligning its decisions (“the law on the books”) with the reality of what is going on in the country (“law in action”). Its bottom line: The Constitution continues to impose real and meaningful limitations on laws limiting access to abortion and courts must take a meaningful look at the reasons given by a legislature for regulating in this area. Read more »

Law and Reality Half-Arrives in the Supreme Court’s Abortion Jurisprudence by Professor Hank Greely

Today, in Whole Woman’s Health v. Hellerstedt, the Supreme Court, by a five to three vote, reversed the Fifth Circuit Court of Appeals and reinstated the decision of the district court invalidating two aspects of Texas’s restrictive abortion statute, H.B. 2. Those provisions required all physicians at the clinic to have admitting privileges at an acute care hospital within 30 miles and further required that all abortion clinics meet all the requirements for outpatient (“ambulatory”) surgical centers.

The majority, in an opinion written by Justice Breyer (a Stanford graduate though he went somewhere back East for law school) refused to apply the standard used by the Court of Appeals, a look at whether there was an undue burden on women’s right to an abortion based almost entirely on unexamined assertions by the State’s lawyers. (The legislature made no findings, so these were not even “facts” allegedly found by it.) With this emphasis on “Law and Reality,” the majority had no difficulty finding that the statutes unduly burdened the abortion right, as the (non-existent) benefits of the legislature were vastly outweighed by its (substantial) costs.

I applaud this decision and wait, confidently, for its application to many of the other TRAP laws (Targeted Regulation of Abortion Providers) adopted by states as part of an anti-abortion strategy of “death by a thousand laws”. At the same time, I do wish the Court had been willing to take the next step toward Law and Reality. Read more »

Michelle Mello on Supreme Court’s Decision to Strike Down Parts of Texas Abortion Law

Michelle M. Mello, Professor of Law at Stanford Law School and Professor of Health Research and Policy at Stanford School of Medicine

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. Read more »