In a devastating 5-3 loss for pro-life advocates, the Supreme Court just overturned two provisions of Texas’ HB 2 law that placed restrictions on abortion providers. The law was designed to improve the safety of women by requiring abortion providers to meet surgical center health and safety standards and maintain admitting privileges at nearby hospitals.
The Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt struck down both of the law’s provisions, saying they placed an “undue burden” on a woman’s right to have an abortion.
In his dissent, Justice Clarence Thomas wrote that the “decision exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue,’” quoting the late Justice Antonin Scalia.
Texas legislators had been careful to ensure that their law conformed to the ‘undue burden standard’ proposed by the Court in Planned Parenthood v. Casey (1992). According to a summary by Public Discourse, the undue burden standard allows legislators to “regulate pre-viability abortions for the health and safety of the woman, provided the regulation does not create a substantial obstacle to the abortion right.”
In its decision in Whole Woman’s Health v. Hellerstedt, the Supreme Court has now disregarded its own undue burden standard. According to Justice Thomas, the scrutiny applied by the majority to the Texas law “bears little resemblance to the undue-burden test the Court articulated” in Casey.
Since Texas law requires physicians performing surgical births like caesarean sections to maintain admitting privileges at local hospitals, applying this standard to physicians that perform abortions should not be controversial. Even the prochoice National Abortion Federation (NAF) recommends that “[i]n the case of emergency, the doctor [performing the abortion] should be able to admit patients to a nearby hospital (no more than 20 minutes away).” HB2 mandated doctors to have hospital admitting privileges at hospitals no more than 30 minutes away – a standard even lower than the one advocated by NAF.
By overturning the health and operating standards required by HB2, the Supreme Court has not only overruled the will of the Texas legislature, but it has also made abortion less safe for women.
An estimated 3,180 women were hospitalized for complications resulting from an abortion in 2011. Requiring abortion clinics to comply with the same medical standards for other forms of surgeries ensures that women will receive necessary medical care when complications arise.
“Our main concern is the safety of Texas women. We will continue to stand for women to keep them safe so they are not maimed or die in abortion clinics,” Jonathan Saenz, President of Texas Values, said in a statement.
The plaintiff in the case, abortion provider Whole Woman’s Health, had repeatedly been cited for safety and health violations in its clinics. In its yearly inspections of Whole Woman’s Health clinics, the Texas Department of State Health Services noted reoccurring safety violations, including the staff’s failure to maintain sterile surgical instruments, expired supplies and medication, rusty machines used on patients, dilapidated facilities, and concerns of rodents. It concluded that “the facility failed to provide a safe and sanitary environment,” remarking that the staff, which had not been trained in CPR, “did not know what a sterilization indicator was” and did not know how to properly use equipment.
Whole Woman’s Health’s terrible record of unsanitary and unsafe conditions demonstrates the importance of laws like HB2. Unfortunately, by siding with unscrupulous abortion providers, the Supreme Court disregarded the best interests of women.
Women deserve better.
This post was originally written for the Family Policy Institute of Washington: http://www.fpiw.org/blog/2016/06/27/opinion-supreme-court-disregards-own-standards-in-abortion-ruling/.