Law and Reality Half-Arrives in the Supreme Court’s Abortion Jurisprudence

(This blog post was originally published by Stanford Law School on June 27, 2016)

On June 27, 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.

The majority opinion opens with a summary of the holding of Planned Parenthood of Southeastern Pa. v. Casey

A plurality of the Court concluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.)

The Court majority found that the Texas statute had such an effect – and that was enough.

But even a blind person can see that the Texas statute, and the many comparable TRAP statutes, were adopted with the overriding purpose (as well as having the effect) of unduly burdening abortion rights, by making abortion theoretically a right but one that, as a practical matter, is unavailable. I do wish the Court had taken another step and recognized that Reality. I recognize that might be, for various reasons, difficult and I am satisfied with the step taken today. But I would like to see the Court majority speak truth about, and to, the legislatures that have adopted these statutes.

Hank Greely

Director, Center for Law and the Neurosciences